It's because when you come into an attorney's office to see if he's the right attorney for you, your lawyer is deciding whether you are the right client for him. It's true. Most of the best trial lawyers in New York are very picky about which cases they accept. Not only does a really smart attorney decide if you are the ideal client for him, but he also looks to see if there's good liability, good causation and good damages.
Let's break it down.
Liability really is "Who is responsible for the wrongdoing?"
Is it your doctor?
Is it a nurse?
Is it hospital staff?
Causation is the link that connects the improper medical care with your injury.
There must be a bridge or a connection between the doctor's negligence and your injury.
The next element an attorney looks at is your damages.
Why type of injury did you suffer?
Is it a permanent injury?
In a medical malpractice case here in NY, the very first thing we have to be able to show is that you are slightly more likely right than wrong that your doctor violated the basic standards of medical care. We do that by having a board certified medical expert review your medical records.
If our expert confirms that your doctor was careless and violated the standard of care, he then must determine if your doctors' carelessness was a cause of your injury. Then, he must determine if your injuries are significant.
ONLY IF our expert confirms ALL three of those things are we permitted to start a lawsuit on your behalf.
Let's change the facts now.
Let's say that our expert determines that your doctor didn't exactly do anything wrong.
You simply had a bad complication from your procedure.
They're really bad.
You need corrective surgery.
You need ongoing medical care and treatment.
You believe your doctor screwed up.
You believe his wrongdoing caused your injury.
Your injury will affect you for years to come.
You now want to sue your doctor.
Are there attorneys in New York who will take a questionable liability case, knowing that if they get past liability, the jury will give you money?
It's because an attorney invests a tremendous amount of time, effort and his own money to prosecute a malpractice case on your behalf.
If your case goes to a jury and it's apparent that a jury could easily determine that nothing was done wrong by your doctor, the jury will never get to evaluate how much money you are to receive.
That means your attorney will not be able to obtain a legal fee for the years of prosecuting your case. For his time and energy to help you.
That means the risk is extremely high that you will lose your case.
If you have questionable liability, it likely means that the defense will force you to go to trial.
When you get to trial, you need to be aware of the statistics of what typically happens in a med mal case.
95% of these cases settle at some point prior to trial.
Of the 5% of these medical malpractice cases that go to trial, the MAJORITY of them are won by the doctor and hospital staff.
That's a staggering fact.
You're already starting off at a disadvantage by going to trial as an injured patient.
To now add the risk of having a weak case on liability means the likelihood of the doctor winning your case is significantly higher.
The risk v. reward ratio is lopsided.
The attorneys I know would politely decline to take your case if liability were not clear cut.