THE ANATOMY OF A SERIOUS INJURY CASE: Screening and rescreening.

Newsletter Issue: 
Seventeenth Edition
Newsletter Date: 
Summer 2009

THE ANATOMY OF A SERIOUS INJURY CASE For the busy practitioner in today’s constantly changing legal climate, getting a call from a prospective client with a seriously disabling or catastrophic injury can be a double edged sword.  On one side, there is the exciting prospect of working up an interesting and challenging case which may mean the difference between the client having a meaningful chance at a productive life outside his disability or a life of financial misery.  On the other side, there is the obligation to devote the time energy and money into working up a complex case with multiple factual, legal, evidentiary, medical and economic issues.

In past newsletters, I have discussed the importance of screening medical negligence cases in the context of the expense and effort needed to get the case through the prelitigation screening panel and beyond.  Over the next few issues, we will focus on ways to evaluate and work up a complex serious injury case including medical negligence, vehicular negligence, premises’ cases, products liability and other general negligence cases.  The discussion will center on the common problems and concerns of all the different types of serious injury cases with what I hope are practical ways to go about identifying the key issues and problems and finding cost effective ways to solve the problems.

Ninety nine percent of serious injury cases do not present with the four sides of the perfect square completed and aligned – liability, causation, damages and coverage.  We as lawyers are the ones who are trained and experienced enough to analyze the cases, identify the problems and find practical solutions.  Let’s start with liability.  If the client does not have a clear liability case, we must be able to figure out rather quickly whether there are both the facts and the legal theories which will strongly support recovery.  Whether in medical negligence, vehicular negligence, premises’ liability, strict liability, or products liability, we need to be familiar with the case law and the statutes to see whether any reasonable interpretation of the facts will support recovery.  Sometimes this is easy.  Other times it takes some digging.  Either way, we should be able to determine whether the facts may reasonably support a viable cause of action early on in the case, so the client doesn’t acquire greater expectations than is justified.  Three years later, we do not want a client, faced with a defense verdict or a recommendation for a low settlement, to quote us from three years ago as saying “this is a great case you can expect millions”. I cannot think of a situation where at the outset of the case, we will want to tell a client what the case is worth.  We simply don’t know at that stage.  Medical records have to be read, permanency has to be established, the impact of the injury on future ability to earn has to be determined and the strength of the defendant’s arguments have to be weighed.  There are simply too many unknowns.  Plus, it doesn’t do the client or the attorney any good to puff up a case when so much can happen over the course of the two to four years it usually takes to bring a serious injury case to a conclusion.  High client expectations usually lead to disappointment. Disappointment can lead to a claim against the attorney.  This is a bad thing.

Many times, the facts themselves aren’t clear.  Investigation may reveal conflicting statements of the client and other witnesses including health care providers.  These factual conflicts or inconsistencies must be cleared up.  For example, if the police report in a vehicular negligence claim contains the statements of witnesses which conflict with each other or the clients statements, these witness should be interviewed either by the attorney or a competent professional investigator to determine the overall credibility of the witness vis a vis the clients story.  While investigators are helpful, it is the attorney’s evaluation of a witness’s credibility that is most important.  Do it yourself whenever possible. 

Medical records often contain a record of statements the client has made to his or her nurse or doctor that conflict with what the client has told us.  Obviously, we have to read the records to know whether we have a problem.  I once received some medical records on a client which recorded that the client told the doctor that he had back problems all his life when he had told me repeatedly that he had never had a back problem in his life.  He was promptly confronted with this information and having no explanation was as promptly fired.  The point is that it would have been tempting to put off reading the client’s records until later in the case, but the inconsistency may not have been discovered soon enough to remedy the situation.

There are times when on most of the facts it looks like we have a good case, but we need to get the defendant’s story.  If the defendant won’t talk to us, we may have to file the claim and depose the defendant.  The client should be notified in writing that the case is being filed so the defendant’s deposition can be taken, and if it looks like he has a valid version of the events which points to a conclusion that he was not at fault, the claim will have to be reevaluated and perhaps dropped. 

Rereading this at this point, it looks as though I am just waiting for the opportunity to get out of a case.  That’s really not so, but it is important to both the attorney and the client to be constantly reevaluating the strengths and weaknesses of the case and should it become clear that we cannot prevail in the case, we need to make the call as early as possible and, yes, get out of the case.  Sometimes this is more difficult than waiting and hoping the case will get better.  It won’t. The last thing the attorney or the client wants is, through procrastination, to be delivering an opening statement on a case you really know is going to produce a defense verdict or a very low damage award.  I know this from experience.  It is not good.

In medical negligence cases especially, I tell all my clients that the cases are time consuming, difficult, expensive and tipped toward the health care providers.  Therefore, at any stage of the case, something might surface which may cause us to reevaluate the viability of continuing with the case.  All the way through the case, we will be constantly reevaluating the strength of the case.  This is important advice and helps to keep the client’s expectations in the zone of reality.

If the case has great liability and damages, it is easy to overlook the issue of causation.  Sometimes a good causation defense is not really obvious, so it does not become the focus until some enterprising defense lawyer finds it and brings it up.  That can be embarrassing.  It has been embarrassing.  Causation defenses are common in medical negligence cases.  It is where many of these cases are won by the defense.  Infection cases, brain damaged baby cases and delayed diagnosis cases are prime examples of where pitched causation battles are always fought.  In every other type of tort case, we must be on the lookout for potential causation defenses.  For example, in a vehicular negligence case, the client may be experiencing neck, low back, arm and leg symptoms.  That is a red flag for the defense to work up and argue that some or most of the complaints were not caused by the forces produced by the incident or they cannot be medically connected.  We need to explore this issue with the treating physician if qualified and if not, hire an independent reviewer in the correct specialty to help. 

NEXT ISSUE:

The Damage Threshold: How serious does an injury have to be to justify the time and expense necessary to bring the case to trial?

Coverage: Ways to find the coverage necessary to adequately compensate the seriously injured client.

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