Choosing a Lawyer
By Kevin Kemp
The Nature of Medical Malpractice Litigation
Medical malpractice litigation is extremely complex, expensive and time consuming. It typically involves hundreds, if not thousands, of pages of medical records and detailed evidence of numerous medical experts. It is often necessary that a plaintiff obtain expert opinions from medical professionals in many different specialties or subspecialties. For example, in a recent case for Kevin to retain experts in the areas of pediatric neurology, hematology, pediatrics, pediatric infectious diseases, microbiology, pediatric nephrology pediatric neuroradiology! Whereas a plaintiff typically has limited resources available to retain such experts, a defendant doctor will have unlimited resources available and access to a lengthy roster of tried and tested expert witnesses.
Further, legal proceedings against doctors are vigorously defended by skilled and experienced legal counsel. A plaintiff should never expect to receive a "nuisance settlement" from the Canadian Medical Protective Association ("CMPA") - the entity that arranges for the defence of the vast majority of physicians in Canada. In fact, if the CMPA regards a case as "defensible", it will expend hundreds of thousands of dollars in legal fees and disbursements rather than pay a nominal amount to settle an action. The majority of those cases that actually reach trial will result, according to statistics maintained by the CMPA, in a verdict favourable to the defendant.
Clearly, medical malpractice litigation is not for counsel that are "faint of heart". It is critical that a plaintiff's lawyer have experience in medical malpractice actions and a comprehensive knowledge of the law as it is applied by the courts in medical malpractice actions. Consequently, the selection of a lawyer to advise you with respect to a possible medical malpractice claim is the single most important decision you will make.
There are many lawyers in Ontario who will accept a medical malpractice case. However, there are only a handful that devote a substantial amount of their time to this specialty.
The First Meeting
You should go to your first meeting with a prospective lawyer with a description of events giving rise to the alleged malpractice. You should also be prepared to ask questions. At this initial meeting you will get a sense of that lawyer’s ability as well as a sense of whether you will be able to work together.
As noted above, medical malpractice cases invariably involve extensive investigation, research, evaluation and consultations with medical professionals. Thus, a lawyer who advises you at the first meeting that a doctor is negligent reveals his or her inexperience in the area of medical malpractice litigation and should be avoided at all costs. This is due to the fact that a lawyer, by his/her education and training, is not qualified to provide an opinion as to whether a given medical professional has or has not met the appropriate standard of care.
Similarly, if a lawyer tells you that you can expect an early settlement then you can be assured that he or she is completely unfamiliar with medical malpractice litigation. You should be suspicious and wary of a lawyer who you suspect is simply telling you what you want to hear.
Questions to ask a potential lawyer ought to include:
- What experience does the lawyer have in medical malpractice litigation?
- What percentage of the lawyer's practice involves medical malpractice claims?
- How much continuing legal and/or medical education does the lawyer undertake?
- Has the lawyer published any articles and/or papers in the area of medical malpractice?
- What is the proposed arrangement with respect to the payment of fees?
- What is the proposed arrangement with respect to disbursements?
- Is an initial retainer required?
- What is the estimate of total fees and disbursements and how will they be paid?
- What experts does the lawyer have available to assist in the evaluation and possible pursuit of your case?