Q. I have what I think is a good malpractice case, because the doctor clearly made a mistake. But I can’t find a lawyer willing to even consider taking my case. Do you have any idea why? Should I try to represent myself?
A. Malpractice lawyers are very selective in the cases they accept or even agree to review. Medical malpractice cases require a large up-front investment in analyzing records and hiring experts, and lots of attorney and staff hours. Medical malpractice has a short statute of limitations: the earlier of three years after the date of injury, or one year after the plaintiff discovers, or should have discovered, the injury. California Code of Civil Procedure § 340.5. Because of the short statute of limitations, there may not be enough time for a lawyer to review the case before the deadline. As a result, even a strong case may not be eligible for review if the statute of limitations is almost up.
In addition, the amount a lawyer can earn in a medical malpractice case is limited, because noneconomic damages, that is, pain and suffering, are capped at $250,000, and contingency fees are limited to a certain percent.
The simple fact of a bad outcome or mistake does not necessarily prove malpractice. If the patient is not seriously hurt, or if the patient would have been injured even with proper care, there is no viable malpractice claim. Even mistakes may not be malpractice; doctors are not required to be perfect.
Medical malpractice lawsuits are extremely complicated and have unique requirements. Self-represented people are expected to research and comply with these requirements and can lose their case if they do not. We highly recommend consulting with an attorney. I know you’ve been looking, but have you tried:
Personal Referrals: Talk to your family or friends for referrals to trusted lawyers.
Online Directories: You can often search these by geographic location and specialty, so you can limit your search to “Sacramento” and “medical malpractice.” Two well-known ones are Martindale-Hubbell Directory (www.martindale.com) and Nolo’s Lawyer Directory (www.lawyers.nolo.com).
Sacramento County Bar Association Attorney Referral Service: http://www.sacbarlawyer.org ($50 for a 30-minute consultation).
Advertisements: Yellow Pages, newspaper ads, or the Internet may be a good starting point as well.
Print Resources: The Sacramento County Public Law Library has a range of print directories and highly-skilled reference law librarians available to assist you.
If you do decide to pursue the case yourself, you should be aware that almost all medical malpractice cases require expert witness testimony. Expert witnesses are required to define the standard of care applying to the particular situation, offer a professional opinion as to whether the defendant met that standard of care, and testify how the defendant’s failure caused the plaintiff’s injuries. If the plaintiff does not present expert testimony, the judge will usually dismiss the case or grant summary judgment for the defendant.
Expert witnesses can be found in directories organized by specialty and geographic region; referral services or professional associations; by researching jury verdicts in similar cases; and by reviewing articles on relevant topics. For more information about these options, visit our “Expert Witness” page at http://www.saclaw.org/pages/expert-witnesses.aspx.
Do you have a question for the County Law Librarian? Just email [email protected]. If your question is selected your answer will appear in next Thursday’s column. Even if your question isn’t selected, though, I will still respond within two weeks.