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
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
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
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
A detailed file memorandum of the entire interview should be prepared.
Brought to you by - The 'Lectric Law Library
The Net's Finest Legal Resource For Legal Pros & Laypeople Alike.