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Excerpted from Medical Malpractice, Third Edition, 25
by David M. Harney
Copyright 1993, The Michie Company, 1-800-446-3410
All rights reserved. Personal use only. No distribution or republication without prior permission from the publisher.
Evaluation of the client.
If the case otherwise seems to have merit, the prospective client should be interviewed personally and in depth. You should determine early if he or she is trustworthy and truthful. It must be ascertained if the prospective client is merely vindictive, or possibly seeking to defeat a claim on the part of a physician or hospital for services rendered.
The filing of a medical malpractice case is serious business for everyone concerned, and if a lawyer encounters a prospective client who appears to be less than truthful, great care should be taken in proceeding further. It may be that an injury has produced an emotional problem that can explain the client's apparent lack of trustworthiness. Under such circumstances, to be fair to everyone, I would recommend a psychiatric evaluation. Our office has encountered situations in which the client has stated a certain set of facts to be true, but later on, perhaps in giving a deposition, we learn that the client has been lying. In such a case an attorney should offer to withdraw and allow the client to serve as his or her own attorney. If the client refuses to do so, the attorney can ask the court to be relieved as counsel. One need not embarrass the client in doing so; it can merely be stated that "irreconcilable difficulties" have arisen between attorney and client.
The intelligence of the prospective client should be assayed. By intelligence I do not necessarily refer to I.Q., but more to an ability to communicate and express ideas adequately. After all, the vehicle through which the case will be presented, in the final analysis, is the client.
The prospective client should be observed with regard to visible residual permanent injury - does he or she have any difficulty walking, bending, etc.? Generally, juries are not interested in giving any money unless there is visible residual permanent injury.
While every wronged plaintiff is entitled to redress for his injuries, you will not fare well before a jury if your client looks like a bum, even if the malpractice resulted in serious injury. In evaluating your case, look at the patient, or if you have a wrongful death case, look at the family members. Do you like them? If you do, chances are the jury will, too.
Does the case have "shock value"?
The "shock value" of a medical malpractice case is important. It is a good idea for the attorney to test his or her own reaction to the client's story. Some authorities in the field believe that if a plaintiff's own lawyer is not "shocked" by what happened to the patient, then a jury will not be, and the jury will follow the traditional path of favoring the medical profession regardless of what the medical evidence might be.
If the client does tell a shocker of a story, you should not jump to the conclusion that the client is exaggerating. A plaintiff's medical malpractice lawyer must acquire the philosophy that anything can happen in medicine. Probably the most bizarre happening one can imagine has occurred somewhere. I have seen meritorious malpractice cases rejected by inexperienced attorneys simply because they could not believe the client's story.
In a case handled by our office the patient suffered from cancer of the right kidney. The surgeon took out the left kidney! But that was not all. The patient remained in the hospital for some ten days before being transferred to another center to have his cancerous right kidney attended to, and in the transfer summary not a word was mentioned about the wrong kidney being removed!
And in another case, a patient with a fourteen-inch prosthesis in her left hip went into the hospital to have the device removed and a new one inserted. But instead of operating on the left hip, the surgeons opened up the normal right hip. Finding no prothesis, they closed the incision and proceeded to work on the other hip. Afterward, they tried to cover up their mistake by explaining to the patient's husband that they deliberately operated on the right hip to see if it had the same disease as the left!
Clients with poor memories.
Many prospective clients, especially those who have sustained serious injury, suffer from poor memories with regard to dates, places, and names. Do not be overly concerned; this is not necessarily a drawback, inasmuch as this kind of information can be procured from other sources: friends, members of the family, physicians' records and hospital charts.
The client should be asked to present at the initial interview all available documentation, particularly billing statements. Oftentimes, billing information will provide clues as to what really has been done. A particular surgical or medical procedure may be identified by way of the billing statement. Sometimes, a bill for anesthesia services will state the number of hours and minutes spent by the anesthesiologist in connection with the administration of a particular anesthetic given at the time of surgery. All of these "building blocks" may be helpful.
Basically, the bona fides and appearance of the prospective client must be evaluated in the first interview. If it appears that he or she has a legitimate and meritorious claim, with objective evidence of injury and residual damage, it will be worthwhile to proceed further with the investigation.
A detailed file memorandum of the entire interview should be prepared.
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