You suffered injury because of a doctor's carelessness.
He violated the basic standards of medical care. As a result of those violations, you suffered significant injury.
You decide to evaluate whether you have a valid case.
The attorney you go to in New York believes you have a valid case not just against one doctor but against three doctors. Your lawyer tells you that you must bring a lawsuit against all three doctors.
You cannot bear the thought of bringing a lawsuit against your favorite doctor.
He is someone who you trust. He has helped you in countless ways over the years. There's just no possible way you will ever bring a lawsuit against him.
Your attorney points out where he departed from good and accepted medical practice. You know in your heart of heart that he is right. The doctor violated the basic standards of medical care. He clearly contributed to your injuries.
Out of the three doctors who saw you, it turns out that each one dropped the ball.
It turns out that each one played a part in committing medical malpractice. They did not intend to harm you, but by their negligence and carelessness you suffered harm.
Despite being told exactly how each doctor was negligent, you are adamant that you will not sue your favorite doctor...under any circumstance.
Your attorney tells you that if you sue only two out of the three doctors, you're going to have a gaping hole in your case. It could be a significant hole that you might not be able to dig out of. That means that the two doctors who you do sue will be able to point fingers at the missing doctor claiming that he is responsible for all of your problems.
The missing doctor defense
The missing doctor defense is often a good one that defense attorneys like to use when an injured victim has failed to sue all the necessary people in a medical malpractice lawsuit in New York.
If you have a valid case and refuse to sue your favorite doctor, there are many really good trial lawyers who would refuse your case. They would do it so that you don't turn around later and wonder why you have so many legal problems with your lawsuit.
When you bring a lawsuit against only two out of three doctors who were careless, this will affect any settlement negotiations as well.
The defense attorneys and their insurance companies will turn around and say that the doctor you did not sue is partially at fault for causing your injuries. They will argue that they should not be required to pay the full amount for injuries caused by someone else. That means they will try and reduce their share of what they may owe because you have failed to sue another doctor who should be in the case.
On the other hand, some of the best lawyers in New York will take on this case in spite of you demanding not to sue your favorite doctor.
In that instance, those attorneys will require and demand that you sign a waiver.
That document will set forth their best recommendations that you should be bringing a lawsuit against all three of those doctors.
That document will also explain why it is critical to bring in all of the necessary doctors into your lawsuit. Then, it will have you acknowledge and recognize that by failing to include your favorite doctor, you are risking your entire lawsuit and that the attorney has spoken with you and informed you fully about those significant risks.
I refuse to deal with clients like these...
I will tell you that in more than 26 years of practice helping injured victims here in New York, I've been presented with this scenario less than a handful of times. In each of these cases, I refused to accept a case where the potential client sets the parameters upon which we can go forward with a lawsuit.
I have found that clients who are demanding and tell us what we can and cannot do in a lawsuit tend to be the worst clients. They feel they know more than the attorneys. They feel they know how to negotiate. They feel they know which people to sue and which people not to sue. They feel they know what documents to send and what documents not to send.
These same injured victims micromanage their case from start to finish. Unfortunately, those same injured victims have never been to law school. They have never tried a case. They don't have 26 years of experience handling medical malpractice cases here in New York. Yet for some reason, they feel they know more than an experienced medical malpractice attorney.
That's perfectly okay, it just means that they are not the right client for me.
If I believe that you need to sue three doctors in order to protect your legal rights in a medical malpractice case, and you demand that you only want to sue two of them, I will likely tell you that's unacceptable and that it has been a pleasure meeting you but I cannot help you.
The remarkable thing is that you, as an injured victim, have the right and ability to choose any attorney you wish. The attorney's fee is the same. We all work on contingency basis. This means, you don't have to take any money out of your own pocket to hire the best lawyer for you. Instead, the attorney will only get paid if he is successful in obtaining compensation for your injuries.
An injured victim who decides to sue only two out of three negligent doctors is doing themselves a disservice.
Such a demanding client is certainly going to question and criticize an attorney when the defense comes back and refuses to negotiate the full value of your injuries. They will question and criticize you when the jury comes back with a verdict that is either inconsistent or significantly less than what you thought.
As an injured victim, you have every right to tell your attorney that you don't want to sue your favorite doctor.
However, I have found the best lawyers who handle these cases on a daily basis will refuse to take on a case like this. A younger, less experienced attorney might be naïve enough to believe that having the client sign a waiver acknowledging that they are acting against the attorney's best legal advice, will somehow protect him from the criticism that is most likely going to arise as the case progresses toward and through trial.