Check Vitals to Evaluate Your Defense in Malpractice Case


KOHALA COAST, HAWAII — You're a physician, not a lawyer. How do you know that the lawyer defending you in a malpractice lawsuit is doing a good job?

When a physician gets sued, the malpractice insurer assigns the case to a legal defense firm. According to Annette Friend, M.D., a psychiatrist, physicians should expect five basic things from a competent lawyer: a plan of action, clear communication, ongoing communications, management of your expectations, and clear explanations of billing policies.

A review of disciplinary actions against lawyers suggests more than half stemmed from clients' complaints that the lawyers were neglectful, failed to communicate, or failed to represent clients diligently or competently. Another complaint—that failure to communicate billing policies led to fee disputes—is an increasing cause of disciplinary dockets, Dr. Friend, who also is a lawyer, said at a conference on clinical dermatology sponsored by the Center for Bio-Medical Communications Inc.

“We want to satisfy you, but you have to insist on being satisfied,” Dennis J. Sinclitico, J.D., a defense lawyer, said in a presentation at a conference in Cabo San Lucas, Mexico, on obstetrics, gynecology, perinatal medicine, neonatology, and the law.

Get a copy of the malpractice insurance company's guidelines on expectations of lawyers to know what the insurer expects for your case, said Mr. Sinclitico of Long Beach, Calif.

To get your lawyer to do the best job for you, Dr. Friend and Mr. Sinclitico advised, think about the following factors:

Plan. The physician and lawyer jointly plan a course of action. The lawyer should explain what is involved in the case, what needs to be done, what may happen next, and various means of resolving the case. The client makes the final decision about how to resolve the legal matter, said Dr. Friend of Fort Lauderdale, Fla.

She suggested asking whether the lawyer has ever handled this type of case, and if there is a way to settle the matter without going to trial. Your bill for an inexperienced lawyer may be higher as more hours are needed to learn the matter.

Communicate. Expect plain speaking, clear writing, and good listening skills from your lawyer. When a complex legal issue can be explained in a way that one's grandmother might understand, that's clear speaking, she said. If you don't understand something your lawyer wrote, chances are the judge and others won't understand it, either. The lawyer should be able to listen to the client and think about the case without being distracted by calls, e-mails, or an overload of other cases.

If your lawyer isn't communicating well, or you don't get along, demand a new lawyer from the firm's associates or the insurer's panel of lawyers, Mr. Sinclitico said.

Communication is a two-way street, he added. If you see an article in the medical literature that's pertinent to your case, send it to the lawyer. Insist on participating in selecting the medical experts whom your attorney will rely on.

Communicate some more. The legal process can drag on for years, so expect ongoing communication from your legal team, preferably from your lawyer personally, Dr. Friend said.

Request regular, periodic status reports from the lawyer, Mr. Sinclitico advised. If the flow of paper stops, or if you call several times without a response from the lawyer, that's a red flag something's wrong.

Manage expectations. As the lawyer continually analyzes and updates you on the pros and cons of the legal proceedings, options should be articulated in a commonsense way without exaggerating the probable success of the case and without painting an overly bleak outcome.

Explain billing. Demand an up-front, detailed accounting of billing policies. Law firms may bill for face time with the client, phone calls, conversations between firm members, time spent reviewing documents, legal research, preparation of forms or documents, revisions, document reviews, travel time and expenses, and other services. If the lawyer in charge of the case changes while the case is in progress, the client should not have to pay for the firm to bring a new lawyer up to speed on the case, Dr. Friend said.

Ask whether legal interns will bill at the same rate as senior lawyers, and be sure that you'll get access to all legal work generated on your behalf, she added.

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