There is a commercial on the radio which suggests you should not buy a house from a cabdriver who happens to take you past the house. The premise, of course, is that the cabdriver has little or no knowledge of the home or of you. The obvious truth of this simple message extends to almost every facet of our lives. Very few of us would hire someone for something as important as being a babysitter for our children or as relatively mundane as repairing our car without being sure that the person we hire knows what they are doing and has some positive track record that we can rely upon. With that basic premise in mind, I find myself consistently surprised at how often a person will hire an attorney to handle a medical malpractice case (as well as many other types of cases) without knowing who the attorney is; what experience they may have in the field; what their record of success in the field may be; or, where they stand in the eyes of their peers and adversaries.
When a person is injured from medical malpractice, a lawsuit against a doctor or health care provider is usually the furthest thing from his or her mind. Concerns about one's health; one's ability to keep working and providing for a family; and, the ability to regain one's place as a productive member of society are among the far more pressing issues. It is typically not until these concerns have been dealt with or accepted that people even consider whether malpractice might have occurred. Unfortunately, the realization that one's life altering injury may have been preventable often adds to the difficulty of the situation.
It is within this emotionally charged and upsetting context that the search for a medical malpractice attorney typically begins. Of course, most people do not know which attorneys concentrate their practice in a specific area or which attorneys happen to focus their practice on the highly technical and difficult field of medical malpractice. Most attorney advertising suggests that the attorney who paid for the ad is an expert in every area of the law including medical malpractice. With the personal stresses and without any way to separate out which attorneys truly know how to handle a medical malpractice case, many people will hire the wrong lawyer.
A further part of the difficulty an injured person deals with when he or she considers a lawsuit is the perceived role of lawsuits in today's society. Lawsuits are not and should not be about a "quick buck" or holding a company up for a "pay day". The civil justice system is about accountability - about placing blame where it belongs. It is about making sure that those injured are compensated for that which they can never get back. It is about making sure that the individual, regardless of his or her financial or societal status, has the same rights as the rich and powerful. It is about assuring society that we are all equal.
Not every wrong can or should be the basis of a lawsuit. There are, however, many valid reasons to bring a lawsuit. Obviously, the simplest reason is to right a wrong. There is also great benefit to others in our community and our society as a whole in that meritorious lawsuits deter similar conduct. Unfortunately, the role of lawsuits in society has been damaged considerably by media attention of a handful of lawsuits, some of which were portrayed inaccurately to fit an agenda and some of which were portrayed correctly but should never have been brought. The end result is that, for a great number of people, lawsuits are nearly the definition of what is wrong with our society today. Critics of our judicial system depict our courts as out of control, attorneys as greedy and lawsuits as damaging to the economy and society as a whole.
Obviously, these are positions taken to drive an agenda. These critics do not address the accountability and equality a lawsuit can provide. They do not account for the positive societal changes the courts have engendered. They do not account for workplaces and products having been made safer by the effects of a lawsuit. They do not account for the millions of people who have been restored some of the ill-gotten gains fleeced by stockbrokers and corporations. They do not account for the many people who do not need to resort to public assistance for their health needs because a lawsuit has provided sufficient financial resources. In short, they do not account for any of the benefits to society of a lawsuit. Rather, they focus on some examples of ill-conceived or poorly prosecuted cases as representative of our system as a whole.
Take a moment to consider who drives these agendas: insurance companies; big business; negligent doctors and others. We must consider, before we accept their agenda, whether they have our best interests at heart or whether their agenda is designed to avoid accountability and increase profits. There are many questions a person must ask themselves before they even consider whether to bring a lawsuit. The most important of those questions, however, is why, over the course of centuries, wars have been waged and governments toppled by people demanding the equality and justice guaranteed by our courts?
A lawsuit is not appropriate in every instance but the decision to pursue this right should be an individual decision about what, under the circumstances, is right for an injured person and his or her family. The doctor whose mistake puts a child in a wheelchair for life or a young wife and mother in an early grave does not have to live with the family he or she has destroyed. The CEO whose decision to increase profit through the use of a toxic additive does not have to live in the town poisoned by that product. The insurance company accountant who refuses to pay for treatment to a seriously ill person who payed for that coverage does not have to watch the person die because they did not receive the treatment. These individuals do not have to live with the ramifications of their decisions and actions and their agenda to avoid responsibility should not drive the injured person's decision to bring a lawsuit or not.
Additionally, those injured by medical negligence often consider the personal and societal impact occasioned by prosecuting a suit. Not infrequently, the injured party or their family personally likes the physician suspecting of doing them harm. Even more frequently, a person injured by a medical professional is made to feel that a lawsuit against that doctor will cause the doctor to leave practice or move to another state. These feelings are generated by a well orchestrated and well financed campaign by the medical lobby. The clearly intended purpose of their message is to prevent lawsuits through guilt and fear.
It has been well documented that, not only does New York have one of the highest population of doctors in the country, but more than 50% of malpractice is caused by less than 5% of our doctors. Unfortunately, in most instances, it is the doctors who make up the 5% that orchestrate the media and political spin of the medical lobby. Rather than focusing their attention on improving the quality of care or increasing medical reimbursement rates by HMO's and the government, which would benefit all doctors and, in large part, all of society, their attention is focused on stopping those most seriously injured from seeking redress in court. Not surprisingly, such an impact only serves to aid those doctors who commit malpractice and, by and large, damages society.
Once again, the decision to bring a lawsuit must be made on an individual basis. The fact that a physician, while maybe not a friend, was kindly or soft spoken as they committed an act of malpractice may be a driving factor in an individual decision. The ultimate question for the individual making the decision on whether to pursue a case against a doctor with a nice personality or demeanor is whether the wrong which was committed, although clearly unintended, is one which we would want repeated. The medical profession, by and large, does not discipline negligence. As such, the only opportunity to prevent a physician from continuing an unsafe practice or procedure is through the courts. Whether one is making this decision for oneself, a parent or a child, the issue is less about who we like and more about whether we would be comfortable knowing that someone else's child or loved one has become injured because we allowed a tailored, politically driven, highly financed and, ultimately false story about doctors leaving the state deter us from the societal good of preventing bad medicine.
Having made the decision to pursue a potential lawsuit, an injured party must consider which attorney will prosecute the case on their behalf. As discussed above, choosing the right attorney should involve determining the person best suited to winning the lawsuit. Too often, the decision is made on the wrong criteria. The doctors, hospitals, insurance companies and corporate wrongdoers who have caused the injury in the first place have spent considerable time and effort to convince those injured through their negligence that all attorneys can handle any case with the same relative level of skill. They know that a lack of understanding, experience or knowledge by the attorney representing a person injured by negligence, even early in an investigation, can severely damage the ability of that attorney to successfully resolve even the most meritorious case. The standing of attorneys in society, which is generally self-inflicted, has led us to a place where an injured person frequently hires the first attorney they see; a relative; a friend; or, the guy who advertises on the television and radio. While some may be qualified to handle a malpractice case, the reality is that most will not. Needless to say, the generally poor results generated when an unqualified attorney handles a complex malpractice case, exacerbates the poor standing of attorneys in society and the willingness of litigants to feel that any attorney will do. The reality is that not all attorneys are capable of handling medical malpractice cases which are, by their very nature, complicated and difficult.
When making a decision as to who will represent you, your child or your loved one, the decision needs to be based on the same criteria you would rely upon for any other difficult decision. Does the attorney have experience with this type of case? How has this attorney and his or her firm performed on other malpractice cases? What is the standing of the attorney in the community as a whole and in the smaller community of malpractice attorneys? What does the attorneys peers say about him or her? What does the attorneys adversaries say about him or her? How do you interact with the attorney? Is he or she someone you feel you can trust? Does the attorney understand the intricacies of medicine and the law as it surrounds your case? Were you directed to this attorney by someone with your best interests at heart or by an advertisement or person with their own agenda or profit motive? In short, is this person the very best person in the field to properly, professionally and successfully prosecute this case for you, your child, your parent or other loved one?
The insurance companies and corporate America have carefully vetted the attorneys who want to work for them defending the lawsuits brought by people injured by their negligence. They only hire the very best attorneys with the skills to be successful, the knowledge of their subject and the experience to maximize the results for their clients. Before you hire an attorney to represent you in a complex case, you should do the same. It can be overwhelming and it can be difficult to work through the various candidates. However, the decision as to which attorney to hire is too important to leave to chance.
Micheal E. Duffy is the Managing Partner of the Law Firm Duffy, Duffy & Burdo Esqs. http://www.ddandb.com
Mr. Duffy is currently the Vice-President of the New York State Academy of Trial Lawyers, a bar association dedicated to restoring the dignity and honor of the legal profession. He has previously served as the President of the Long Island Affiliate of the New York State Trial Lawyers Association, as well as having served as a member of the Board of Directors of that organization. He is an active member of the American Association for Justice; the Long Island Trial Lawyers Association; the Nassau-Suffolk Trial Lawyers Association; the Suffolk Country Bar Association; and The American Trial Lawyers Association.
