I receive several calls a week from potential clients who have had unfortunate things happen to them, and after telling me their tale of woe, cannot understand why I won’t take their case. I’ve learned over the years that some of the basic principles that lawyers take for granted are simply not well understood by non-lawyers. Thus, it helps all of us to take away some of the mystery. Here are two common scenarios that may help you understand why a lawyer was not in agreement that your case should be pursued.
Scenario 1. “What the doctor did was so terrible; he didn’t even apologize.” As with every tort (Latin for wrongful conduct which causes harm), there are three elements which must be proved in a medical negligence case: a negligent or intentional act, one that was a probable cause, and resulting in injury or death. Most of the time, when a lawyer does not take a case, one or more of these elements is missing or, in the lawyer’s judgment, it would be difficult or impossible to prove. Frequently in medical cases it is the third element. It is an unfortunate fact of life that, just like everyone else, medical providers make mistakes. However, if the mistake is recognized and potential harm is averted, there is no case. Medication errors are a classic example. If a doctor prescribes an excessive dose of a lethal medication but the pharmacist recognizes the error before filling the prescription, there is no case. “But I could have died,” I often hear. The patient’s anger is understandable, but the purpose of a tort lawsuit is not retribution; it is compensation for physical injury. While damages compensated include pain and emotional distress, an underlying injury that causes them is required. Neither is it the purpose of tort law to punish bad behavior that is either not negligent or does not cause harm. For example, I recently had a client who, upon waking up from an endoscopic procedure, learned that he was paralyzed from the waist down from an air embolism introduced during the procedure. He also learned that the reason the doctor did not meet with him in the recovery room was because he had left the hospital to attend a birthday party. Although this was inexcusable conduct, if I had not been able to prove (which I successfully did) that the doctor should not have performed the procedure in the first place, the bad behavior alone would not have justified a lawsuit, because it did not cause the harm. I recently heard a legal expert, discussing the military’s inability to defy an order the commanders believed was wrong, used the phrase “awful but lawful.” This maxim also applies to the numerous unfortunate accounts I hear of bad behavior by employers. The reason for turning down those cases is that proving unlawful conduct is absent.
Scenario 2. “I was in a car accident [caused by a negligent driver] and now I have pain/memory loss/vision problems, which I never had before.” The problem with many of these potential cases is the inability to prove the third element—that the accident caused the problem. In all cases involving personal injury, the testimony of a qualified medical professional attesting to that fact is required. So, one of my first questions when contacted by a potential client is “Did your doctor tell you he believes the accident caused this problem?” If the person is not sure, or even if he or she believes the doctor will attest to this causal connection, a good lawyer will request and review the person’s medical records to confirm what the doctor recorded. Unfortunately, because doctors are trained to base their opinions on scientific evidence and principles, I will often read statements like “patient reports [whatever the problem is], etiology [i.e. cause] unclear.” Unless there is good reason to believe that the doctor is mistaken and/or does not have enough information, I must tell the potential client I cannot take the case.
If I advise against pursuing a lawsuit, potential clients should understand that it’s never a matter of laziness, personal bias, or favoring the other side. Rather, my concern is knowing that bringing a lawsuit is financially and emotionally difficult for the client, far more than it is for the lawyer. A well-qualified defense lawyer will find and use every single weakness in the case that I’ve already spotted, and likely a few more. Putting a client through that process, only to get a disappointing result, simply isn’t doing them any favors. I encourage you to contact a lawyer if you believe you have a valid basis for a lawsuit. However, if you’ve found a lawyer who is qualified and experienced, and they decline to take your matter, you need to listen closely. Get a second opinion, of course, but also understand this: the law is not meant to solve every problem, and you should distrust any lawyer who tells you otherwise.
