Step 1 - The Initial Investigation
The first thing we do when we take on a new medical malpractice case is to conduct a detailed, comprehensive preliminary investigation. We contact all of the doctors, hospitals and other health care providers whose care was directly or indirectly related to the alleged malpractice and we obtain copies of all of the relevant medical records. When necessary, extensive research in the medical literature regarding the issues involved in the medical care is undertaken. The Internet provides access to the entire National Library of Medicine, the largest English language database of medical literature in the world. Computerized medical libraries of several major teaching institutions are also utilized. The medical records and the medical literature are carefully reviewed. Throughout this process we look for the answers to two basic questions:
- Was someone negligent in providing medical care to our client?
- What injury resulted directly from that negligent care?
If based upon our review we do not feel that we have the evidence to successfully prosecute a medical malpractice case, before we incur the significant expense of an expert review, we will sit down with our clients and explain what we found and why we do not think the case is viable. Even if we do no think there is a case, we are still willing to consider having the case reviewed by an expert.
If the decision is made to pursue a Medical Malpractice case, arrangements are then made for the medical records to be reviewed by an expert in the appropriate field of medicine. The experts we use are employed as either treating physicians or teaching physician; that is they are either taking care of patients or teaching new physicians how to take care of patients. At The Krasnow Law Firm only physicians who have the highest qualifications, who will testify for both plaintiffs and defendants and who get most of their income from practicing or teaching medicine are utilized. Extensive experience in Medical Malpractice cases means our attorneys know many outstanding experts and how to establish contact with other experts with outstanding credentials. Due to our high level of experience and expertise, we have had the privilege of working with some of the top physicians in America. The experts’ opinions are crucial. If the expert feels that there is no case, a complete explanation of the situation is obtained for our client and we close our file. If the expert feels that the case is meritorious, then we proceed to file a suit for our client.
Step 2 - Filing Suit
Based on the opinions we received from the expert, who has carefully reviewed the case, we prepare and file a lawsuit on behalf of our client. When we file suit, copies of the papers are served on the defendants and their attorneys file Responsive Pleadings, called “Grounds of Defense” to the lawsuit we have filed.
Step 3 - Pretrial Discovery
Pretrial Discovery can be divided into three parts:
- Written Discovery
- Depositions of the Parties and Lay Witnesses
- Depositions of Expert Witnesses
Written Discovery
In this phase of the litigation, each party sends, to their adversary, written questions called “Interrogatories” along with written requests to produce copies of documents relevant to the case. Interrogatories must be answered in writing and the parties must swear to their answers under penalty of perjury. Each side must also turn over any and all documents that it has regarding the case.
Depositions of the Lay Witnesses
Depositions are testimony, under oath, just like in court, but depositions are conducted outside of court; generally in a lawyers’ conference room. Depositions are an opportunity for the lawyers to find out, in advance, what the other party and witnesses will say at trial. Lawyers use depositions to assess their adversary. (i.e. What kind of a person are they? What type of appearance do they make? Is the person believable? Will the jury like him? Will they believe her?) We routinely conduct a deposition of the defendant and defense counsel routinely deposes our client as well as other family members. Sometimes other health care providers are also deposed. But, before defense counsel conducts a deposition of our client, we make certain our client is fully prepared to answer the defense counsel’s questions. At the pre-deposition conference our clients view a video about depositions and then sit down with their attorney to discuss depositions, in general, and their case in particular.
Expert Depositions
Once we have responses to our written discovery and the transcripts of the depositions, these materials are sent to our experts so they can confirm and finalize their opinions concerning the case. Once this is completed, we disclose to the defense the names of our experts and the substance and bases for their opinions. Arrangements are then made for defense counsel to depose our experts. Once again, we schedule pre-deposition conferences with our experts before they are deposed to make sure they are fully prepared, that they correctly understand the facts of the case and what the issues are, and that they understand what questions to expect. After defense counsel has received the transcripts of the depositions of our experts, they will disclose their experts and we will take their depositions.
Step 4 - Negotiations & Settlement
Most Medical Malpractice cases do not go to trial. The overwhelming majority of them settle. But, of the medical malpractice cases that do go to trial, most result in verdicts for the defense. The reason for this is that the insurance companies settle most of the cases they feel they are likely to lose. In the twenty-five years we have been representing clients in medical malpractice cases, only four of our firm’s cases have gone to trial. As a general rule, there are no serious discussions of settlement in medical malpractice cases until after the plaintiff’s experts have been deposed. Even when a Medical Malpractice case goes to trial some negotiations will usually have taken place beforehand.
Sometimes when negotiations towards settlement are unsuccessful, the parties will agree to participate in either mediation or arbitration. Mediation is a form of negotiation where the lawyers and the clients agree on a neutral mediator, often a retired judge or experienced attorney, who will sit down with the parties and try to help them reach an agreement. Arbitration involves both sides agreeing on a neutral arbitrator who will actually decide the case with both sides agreeing to abide by that decision. Agreements to arbitrate usually include a “high/low” agreement as well. A high/low agreement means the parties have agreed that no matter how much money the arbitrator awards the plaintiff, the defense will not have to pay any more than the agreed upon high amount. It also means that even if the arbitrator decides for the defense and awards the plaintiff no damages, the plaintiff still gets the agreed upon low amount. The Krasnow Law Firm has participated in numerous mediations and arbitrations in medical malpractice cases in recent years. It is an excellent technique, in the right circumstances, to get a matter resolved much more quickly and much less expensively than a trial, and with far less stress on the client and his or her family.
Step 5 - Trial Preparation & Trial
When the defense will not make a fair offer, we set the case for trial. Arrangements are made for our experts to testify at trial, either in person or by deposition. Numerous hours are spent preparing exhibits, visual aids, opening statements, questions for the witnesses and closing arguments. Focus groups are used to see how people who may be similar to the prospective jurors, react to the case. Pre-trial conferences are held with our client, our experts and all witnesses so that everyone knows exactly what to expect. Before we go to trial we want everyone who will testify in our case to know all of the questions they will be asked and we want to know all of the answers. We will also prepare all of our witnesses for cross-examination by defense counsel.
No lawyer can guarantee the outcome of a jury trial. In fact, no lawyer can consistently predict what a jury will decide even after the case has been tried. But, careful, thorough preparation by experienced trial lawyers produces the greatest likelihood of a fair settlement and a successful trial outcome. While no lawyer can guarantee the outcome of a case, we do everything in our power, within the law and the canons of ethics, to provide our clients with the very best legal representation. No lawyer can guarantee success, but since we do not get paid for our time unless there is a recovery we choose our cases very carefully and prosecute them aggressively. We promise each client that when the case is over, whether we have won or lost, the other side will know they were in one heck of a fight. Our motto is “We Make Your Case Our Cause” and we live that each day as we fight for our clients.