A provocative article caught my eye recently. Justice in Crisis: Victim Access to the American Liability System. The author, Joanna Shepherd, is an Associate Professor of Law at Emory. The question she intended to answer was simple. What amount in damages must a medical malpractice plaintiff’s attorney expect in exchange for representing a potential client? The common refrain from the trial bar is that everyone deserves their day in court. But, if many would-be plaintiffs can’t find a lawyer to represent them, isn’t that aspiration hollow?
Ms. Shepherd sent her survey to self-described medical malpractice attorneys across the U.S. Here’s what she learned. It’s expensive to litigate and economic reality causes many attorneys to reject many legitimate cases. “The attorneys indicate[d] that insufficient damages and high litigation expenses are their primary reasons for rejecting cases and that several tort reforms have reduced their willingness to accept cases.”
More interestingly, over half of the attorneys responded they will not accept a case they are almost certain to win unless the expected damages exceeds $250,000. To drive home that point: that’s for a case they would be otherwise be almost certain to win. For a case that they are only slightly likely to win (e.g. 51% or better), the vast majority of attorneys require minimum expected damages of $500,000 to accept the case. Not a small sum.
Does this mean that no attorney will take a low value case – meritorious or otherwise? Not so fast. It means that seasoned veterans in prosecuting med mal claims shy away from low value claims. But, second and third tier attorneys might not be so dissuaded. Such attorneys often know not what they know not. And, a lawsuit is still a lawsuit.
I have 8 past friends who were my roomates in college who are all now attorneys. I asked them the same question. They ALL initially responded that it depended on what level they were in the firm. Essentially, the most junior member is eager to wet his whistle in trial or arbitration and gain any form of income and billable hours. The senior partner wouldn’t consider participation unless for a client with a retainer or a multimillion dollar probable payout. this has been my personal experience as well. Unfortunately, these junior attorneys or underemployed attorneys also have nothing better to do than perpetuate a loser of a case as well. This explains why cases with very little merit rarely cease before arbitration or litigation.
I can tell you that regions of country vary immensely. Florida is lawyer saturated and these attorneys will likely take a case with a $3,000-$6,000 pay out. Tort reform in Texas and California have also gone a long way to reduce the frivolous claims made commonly in other states.
An important part of this discussion (and was probably missing from the original article), was the effect of settlement before trial. It costs very little to demand a settlement (compared with a full blown trial), and I suggest that this is the goal of all attorneys who take on “lower” value cases.
Malpractice attorneys need to first hire their own experts to test the validity of their potential case. While that can be expensive, I believe that most experienced firms have physicians and dentists on retainer to examine cases and only have to pay time-cost for those evaluations.
It would be very helpful if both plaintiff and defendants’ attorneys could evaluate claims based upon a “point value” system, comparing various aspects of the chart notes. I have developed such a system, located here: http://hierarchieschartaudit.homestead.com/
There is no perfect method to evaluate charts for either side. Obviously the opinion of the chart auditor colors their opinion based upon which side they are hired on. This is only understandable human nature. But at the very beginning of a potential lawsuit, it would be very helpful if both sides could obtain at least a slightly more objective format.
That is the value of a point system. An additional benefit is that point-value systems are amenable to spread sheet analysis.
Michael M. Rosenblatt, DPM