You think your doctor violated the basic standards of medical care causing you harm.
You finally decide to take action.
Your life has been disrupted.
Your injuries will be permanent.
You've heard that lawyers charge a lot of money to handle this type of injury case.
You have time on your hands.
You are a fast learner.
You know you can do exactly what lawyers do and you don't want to give up a percentage of whatever money you recover to some lawyer.
You decide to handle your case on your own.
You can do that.
Before I share with you 17 reasons why handling your own medical malpractice case here in New York is a really bad idea, let me ask you this series of questions...
When your plumbing breaks in your house, do you break out your tools and repair it on your own?
When your expensive watch breaks, do you run to the library or the Internet to learn how to become a master watchman in a few short days and try to fix it on your own?
When you have a hole in your roof, do you climb up on your roof in the middle of a storm and try to fix it?
If you need heart surgery, are you going to attempt surgery on your own?
You get the gist of what I am asking.
Often, it is more helpful, quicker and you get a better outcome when a professional handles each one of the items I talked about above.
Of course a professional cannot guarantee a particular outcome but at least you know that by handing over your credit card in exchange for professional services, you their experience. You get the solutions to problems they see over and over.
You get your headache resolved without having to become an expert in that field.
Let me give you one additional warning.
Handling a medical malpractice case is very different than handling a car accident case here in New York.
If you were a passenger in a car that was hit in the rear while stopped at a stoplight, you could literally file your lawsuit the next day.
You could not do that in a medical malpractice matter.
You could not do that in a wrongful death case.
If you are unfamiliar with the steps needed to to handle this type of case from start to finish, you are likely going to step into a minefield. That could be deadly for your case.
You won't know where the mines are located.
Your opponents may set them up for you and encourage you to step on them.
Because you don't have the experience to deal with these legal issues, you set yourself up for frustration, anger, inconvenience and aggravation that could destroy your entire case.
Lets get right to it and share with you 17 ways handling your medical malpractice case on your own could prove deadly to your case...
- You did not gather all of your available medical records.
- You did not properly evaluate all of your medical records.
- You did not hire a board-certified medical expert in the same specialty as your careless doctor.
- You do not know whether your case is still timely.
- You do not know who employs your doctor.
- You do not know the correct legal name of the company that your doctor works for.
- You're unsure in which county to bring your lawsuit.
- You are unfamiliar with what is required to put into your summons and complaint to start your lawsuit.
- You're unsure how much time the defense has in which to answer the allegations in your case.
- The defense fails to respond to your lawsuit papers. You let it slide. You fail to take a default judgment.
- When the defense replies to your allegations, you are unsure how to reply to their discovery demands.
- You did not know you need to file a request for judicial intervention (RJI) in order to get your case moving through the court system.
- You are unsure of when and how the court will notify you for preliminary scheduling conference.
- You fail to show up at your preliminary conference.
- You fail to prepare a bill of particulars.
- You fail to give copies of your medical records to the defense attorneys.
- You fail to give the defense permission slips to get copies of your records from the doctors and hospitals directly.
You should know that there many more reasons that could trip you up when handling a case of this magnitude on your own.
Let me explain the reasons above to give you a clear picture of what happens if you make these mistakes.
1. You did not obtain all of your medical records.
This could be deadly.
In order to evaluate whether or not you have a valid case, we are required to obtain every page of every medical record that is relevant to what the doctor did and what injuries you have because of that. If you fail to gather all of your records, then your expert will be reaching conclusions based upon an incomplete record.
Later on, if your medical expert learns that there are additional records he failed to review, that could change his opinion and conclusions about whether or not there was improper medical care rendered.
This is an extremely critical point that should not be taken lightly.
You cannot pick and choose which records you want to give to an expert to review.
You must give him all of your medical records.
In addition, it is extremely important that you personally read each and every page of every medical record.
To learn what happens if your doctor refuses to give you copies of your medical records, I invite you to watch the brief video below. After that, continue reading to learn even more...
You must understand the medicine involved.
You must understand the nuances.
You must be able to read the doctor's notes and understand why certain treatment was rendered or was not rendered.
If your doctor refuses to give you your medical records, what can you do? Learn more by watching the video below and then continuing on with the article...
2. You failed to properly evaluate your own medical records.
This is a dilemma.
Most injured patients do not have medical training. They are unfamiliar with medical abbreviations.
Instead, an injured patient will often have a good understanding of the injuries and problems they have as a result of their medical care.
However, if you ask an injured patient to verbalize what the doctor did wrong, they are often unable to do so.
Failing to understand how your doctor violated the basic standards of medical care and whether those violations were a cause of your injuries, will prove fatal if your case is not evaluated properly at the very beginning.
3. In New York, before you are permitted to file a medical malpractice lawsuit, you are required to have a medical expert review all of your records.
Your medical expert MUST confirm that
(1) there was wrongdoing,
(2) the wrongdoing caused injury and
(3) your injury is significant and/or permanent.
Only after a qualified medical expert has confirmed each of those things are you permitted to file a lawsuit.
You cannot file a lawsuit simply because you feel in your gut that a doctor did something wrong.
You cannot file a lawsuit simply because you suffered a complication as a result of the procedure.
You need to show that you are more likely right than wrong that what you are claiming is true.
That must all be supported by a medical expert who has reviewed all of your medical records.
Since you have chosen to handle this matter on your own, the challenge will be for you to locate a good medical expert who is willing to review your records.
You will find that this is not an easy task for someone who is uninitiated to the lawsuit process.
To learn why you only ask opposing medical experts short leading questions on cross examination at trial, I encourage you to watch this quick video. Then, keep reading below to learn more...
4. You need to know whether your matter is timely before ever delving into whether you have a valid case.
The reason you need to know this is because you might be spending your time, energy and significant resources to have your case evaluated and if your matter is not timely, none of that will matter.
You need to know that in New York, there are very strict time limits when you can bring your lawsuit for medical malpractice.
There is a general time limit and then there are many exceptions.
If you mistakenly calculate the time in which you have to file your lawsuit, this will be fatal to your case.
You should know, that as of today, December 1, 2015, an injured patient typically has only 2 1/2 years from the date of any wrongdoing in which to bring a lawsuit against a private doctor or private hospital here in New York.
I caution you that you cannot rely on that information I just gave you.
The reason is because the time limit in which to bring a lawsuit sometimes changes.
The only way to know for sure whether or not your matter is timely is to speak to an experienced attorney who handles these cases on a daily basis.
You also need to know that the time limit is much different if your improper medical care happened in a municipal hospital such as Jacobi Hospital, Elmhurst Hospital, Metropolitan Hospital, Harlem Hospital, Queens General Hospital, Kings County Hospital or any other NYCHHC hospital.
In cases against a municipal Hospital, you typically have only 90 days in which to file a claim against the New York City Health and Hospitals Corporation. You then must file suit within one year and 90 days after the wrongdoing. However, keep in mind that your notice of claim must be filed first before you are ever permitted to file suit.
If your matter happened in a state hospital such as Stony Brook University Hospital or Downstate Hospital, the time limit is different.
If your matter happened at a Veterans Administration hospital, your time limit is different.
If this happened to a child, the time limit is significantly different.
If this happened during the course of your labor and delivery and birth, your time limit is different.
If you continue to be seen and treated by the same doctor who caused you harm, your time limit will likely be different.
Failing to understand whether or not your matter is timely up will most certainly be fatal to your case.
To learn about the time limits in a medical malpractice case, I invite you to listen in as I discussed this issue with lawyers at the NYC Bar Association. Then, keep reading...
5. You don't know who employs your doctor.
You have blinders on.
You are so focused that your doctor didn't properly treat you, that you don't realize how important it is to learn who employs him.
From a legal standpoint, it is extremely important to identify where he works and who employs him.
Is it a hospital? Is it a limited liability corporation? Is it a medical group?
The reason is because an employer is always responsible for the acts of its employees.
There are two legal doctrines that you need to know about when bringing a lawsuit against the doctor.
The first is called respondeat superior.
The second is called vicarious liability.
Both of those legal theories state clearly that the employer is responsible for the acts of its employees as long as the employee is acting within the scope of his job duties.
That means, if you only bring a lawsuit against your doctor and not his employer, you have just given his employer a pass and the doctor may not be able to fully compensate you for your injuries.
There may be insufficient insurance coverage to fully compensate you if you only sue the doctor.
To learn why a hospital is responsible for the acts of young doctors-in-training, I invite you to watch the video below and then keep reading...
6. You don't know the correct legal name of the company the doctor works for.
If you fail to properly name the company your doctor works for, the defense will most certainly try and get your case thrown out.
They will argue that you sued the wrong legal entity.
That could prove deadly for your case especially if the time limit in which you have to file a lawsuit has now expired.
In some instances, a court may permit you to change the information in your lawsuit papers to include the correct name of the company.
There are specific ways to identify the correct legal entity you need to sue. If you fail to do proper research before starting your lawsuit, it could prove fatal for your case.
7. What county do you file your lawsuit in?
This can make a difference.
You think it's more convenient for you to file your lawsuit in the county in which you live.
That may be true.
Then again, you might be hurting the value of your case because you don't know what other options you have.
If your doctor treated you in another county, you may have the option to bring your lawsuit in either the county where you live or the county where you were treated.
If you don't handle these types of cases on a regular basis, you are not going to fully appreciate the nuances associated with bringing a lawsuit in a specific County, if you have that opportunity.
There are many attorneys who subscribe to the belief that certain counties are more favorable than others for injured victims.
There are attorneys who believe that certain jurors and demographics of jurors in specific counties may be more favorable to an injured victim compared to others.
If you simply choose the county at random, you could be destroying not only the value of your case but ultimately whether you are successful.
8. Having never prepared lawsuit papers before, you are unfamiliar with the legal requirements of what information needs to go into the lawsuit papers known as a summons and a complaint.
That could prove deadly.
If you deliver your lawsuit papers to the people you are suing without having the correct legal elements in it, the defense lawyers will have a field day and eagerly attempt to get your case dismissed before they ever respond to the allegations in your case.
That's known as making a motion for summary judgment in lieu of an answer.
The defense will argue that your complaint fails to state a cause of action.
In your complaint, you cannot and should not simply recite the facts leading up to your injuries.
That does not establish the basis of the lawsuit.
The law is clear in New York about what elements must be included in your summons and complaint.
Do not simply use a template you find online hoping this will do the trick.
You should also be aware that this is not the opportunity to be extremely detailed about each and every thing that happened to you leading to your injuries.
Failure to properly include the legal requirements and set forth valid causes of action, will undoubtedly lead the defense lawyers to ask a judge to dismiss your case.
The fact that you have never done this before is simply a mitigating factor for the judge to consider when evaluating whether to dismiss your case.
However, if you choose to bring a lawsuit on your own, you are still obligated to know what should be contained within these legal documents. Failing to overcome this hurdle will be fatal to your case.
9. Let's say you have now prepared the legal documents to start your case. You have purchased an identifying number, known as an index number and now you have successfully figured out how to deliver those documents to the people and companies you are suing.
You are now excited to have started your case and fully expect this matter to proceed quickly.
How much time does the defense have in order to read your documents and reply to your lawsuit allegations?
Do they have 5 days? Do they have 10 days? Do they have 30 days? Do they have the ability to call you and ask you for additional time to reply to your allegations?
If they ask for an extension of time, do you agree or disagree? What happens if you disagree? What do you do if you agree?
For how long can you give them additional time to reply?
Without knowing the answer to these specific questions, you will have stepped into a minefield that could easily prove fatal.
The reason is that days, weeks and maybe even months will go by without getting any answer whatsoever to your lawsuit allegations.
That leads me to the next point.
10. What happens if the defense fails to ever respond to your allegations?
There could be a number of reasons why the defense has not responded to your allegations.
First and foremost is that the lawsuit papers you prepared were not properly delivered to the doctor and his employer.
If they never received your lawsuit papers, you've got a problem.
Especially if your time limit in which to file your lawsuit has now expired.
Even if you timely prepared your documents and timely purchased an identifying number, if the defense fails to answer your allegations, by the time you recognize the problem, it may be too late.
If the defense fails to answer your allegations, you may have no choice but to start a default preceding against them.
If you are unfamiliar with how a default action works, you are likely giving up significant rights that could prove fatal for your case.
A default preceding is simply to get written confirmation from the court that you have received an automatic win because the other side failed to show up.
But first, you must prove to the court that you did everything properly.
You must show the court that in spite of you doing everything properly and delivering your lawsuit papers to the correct people in the correct manner, the doctors and the hospital have chosen not to respond to your lawsuit.
If you don't have the correct proof to do this, the judge will not permit you to get an automatic win.
Then, even if you are somehow successful in obtaining an automatic win because the defense failed to show up, you must now have a trial on damages.
If the defense tries to dismiss your case instead of answering your allegations, I encourage you to watch the video below...
If you fail to understand what evidence and which witnesses you will need to testify on damages, you are now depriving yourself of the opportunity to obtain full and fair compensation.
Another challenge will arise when you have had your trial on damages and the judge gives you a verdict in your favor and compensates you with a specific amount of money.
You then will have the burden of trying to enforce that judgment in order to obtain compensation for all of your injuries.
That's no easy feat.
11. Let's say the defense has now responded to your allegations and served you with many discovery demands. How do you respond?
You are likely going to be unsure whether you must reply to all of these discovery demands.
You will quickly learn that they are time-consuming.
They are repetitive.
They are annoying.
When the defense request copies of your medical records, how far back can they go?
Do you have to give your medical records going back 10 years? What about 5 years?
Let's say your case involves improperly performed gynecology surgery and now the defense want to get your primary care doctor's records.
Are you required to give it to them?
What if the defense attorneys want your psychiatric records about treatment that you had years earlier, unrelated to this claim? Are you required to give it to them?
What if you were in therapy with your spouse because of marital problems.
Are you required to give them those records as well?
What if you declare bankruptcy at some point in your past? Do you know what implications that will have on your case?
Failure to understand exactly which records the defense is entitled to and which records they are not entitled to can often provide them with information that could prove deadly to your case.
12. After you respond to the defense's discovery requests, you think you are done for a while.
You're happy to be finished with all of these discovery demands and discovery replies.
You sit around waiting for weeks and months for the court to notify you to come in for a conference.
That will not happen unless you take action and file a request for judicial intervention known as an RJI.
But before you can do that, there are certain the documents that you must file with the court.
You must have already filed a certificate of merit.
You must show to the court that you have replied to the defense's discovery demands.
The court wants to see that you have taken the correct steps before they allow you to come in for your initial scheduling conference.
That brings me to the next point.
13. You've filed your RJI, but when will court notify you to appear for a conference?
If you don't know how to diary your upcoming conferences, that will be a major problem.
That's especially true since most courts no longer send out letters to the attorneys letting them know about when their conferences are taking place.
Instead, it's all done electronically. By email.
If you fail to sign up for these email updates, there's a good chance you'll miss your scheduled conference and have your case automatically dismissed for failure to appear. That bring me to the next point...
14. If you fail to show up for your conference, the court can and sometimes will dismiss your case.
Different judges have different rules about what happens if the litigant or their attorney fail to show up for a conference. Some judges will not dismiss your case. Others will.
Yet others will simply adjourn your conference to another date.
You cannot expect the court to take pity on you simply because you are learning to do this on your own.
The court expects you to get up to speed and follow the same rules that everyone else must follow.
In the event you are unable to attend a conference, there are procedures in place that will allow you to try and obtain an adjournment to move your conference to another day. Alternatively, you can hire a per diem attorney to handle your conference for you.
If you need to request an adjournment, that typically involves getting your opponents to consent to another date for your conference. Depending upon whether your conference has been pushed back before, most defense attorneys should have no problem consenting to an adjournment.
However, failing to follow the court's peculiar rules and procedures could be detrimental to your case.
15. What happens if you fail to prepare a bill of particulars?
You should know that once you start your lawsuit, you are required to prepare a detailed bill of particulars and deliver it to the defense attorneys. This document contains detailed allegations you are making against the doctors and hospital staff.
It sets forth detailed injuries you received because of your doctor's negligence.
If you fail to prepare a bill of particulars and send it to the defense lawyers, the defense will make a big deal out of it and claim that your case should be dismissed.
The court will require you to prepare this document and deliver it to the defense attorneys in order to give them a detailed idea of exactly what your claims are and what injuries you suffered because of it.
They will claim they are prejudiced and cannot fairly and appropriately defend your case without it.
Should you fail to produce this document and fail to go into sufficient detail, the defense will have no problem asking the judge to dismiss your case claiming they are unfamiliar with what your exact claims are and what exact injuries you received because of it.
To learn more about what is a bill of particulars, I encourage you to watch the video below...
16. The defense attorneys have requested copies of your medical records.
You fail to provide it since it is extremely expensive to make copies of all your records.
Failing to provide copies of your medical records could result in the defense asking the judge to dismiss your case.
You see, when you bring a lawsuit seeking compensation for all the harms and losses you suffered, you put your medical condition in issue.
That means that the defense now has an opportunity to verify the claims that you are making.
The defense has an opportunity to verify the damages that you are claiming.
One of the ways they do that is by obtaining copies of your medical records directly from the doctors and hospitals.
In addition, the defense is also entitled to receive whatever copies of medical records you have obtained so they can compare the records you obtained against the records they receive directly from the doctors and hospitals.
Let's say you were hospitalized for weeks in the intensive care unit.
At the beginning of your case, you needed to obtain copies of all your records.
It was likely very expensive to pay for copying costs to get your records.
Maybe you had thousands of dollars worth of copying costs.
Now that the defense attorneys are requesting copies of your records that you obtained, you believe that you will have to incur all of these copying costs again, multiplied by the number of defense lawyers in your case.
That would not be true.
In fact, you can ask the defense to pay for the copying costs for those voluminous hospital and medical records.
But even if they pay, you still need to get those records copied and delivered to them.
If you choose, for whatever reason, not to provide copies of your medical records, the defense attorneys can and likely will ask the judge to fine you or sanction you or possibly even dismiss your case for failure to comply with the court rules for discovery.
17. Once you claim that you suffered significant injury because of your doctor's carelessness, the defense now has the opportunity to investigate for themselves whether your claim has merit.
The only way the defense attorneys can verify the extent of your injuries is if they get copies of your medical records directly from the doctors & hospitals who were treating you.
You should also know that your treating doctors and the hospital are prohibited by law from simply giving out your medical information to just anyone who asks for it.
Instead, the defense attorneys need special permission slips, signed by you, the injured patient, that will allow them to present it to the doctors and hospitals in order to get your records.
That permission slip effectively allows each defense lawyer the ability to legally get copies of your records.
The defense attorneys will take those permission slips and forward them to your treating doctors along with a cover letter.
The cover letter will indicate that they represent a doctor or a hospital who is being sued.
The letter will indicate that they are requesting full and complete copies of your medical records.
They are requesting that the doctor or hospital confirm that these photocopied records are accurate reproductions of the original records currently on file.
You should also know that the defense attorneys bear the burden of paying whatever photocopying charges are associated with those record requests.
To learn more about authorizations, I invite you to watch this quick video...
This is part of the normal discovery process in these types of cases.
If you fail to provide the defense with these permission slips, known as authorizations, they will ask the judge to intervene and force you and compel you to provide these permission slips.
If the court has ordered you to provide this information and you still fail to do so, the court has many options available including sanctioning you, fining you a monetary penalty, preventing you from offering specific proof at trial and even taking the drastic measure of dismissing your case.
There are many other pitfalls that will ensnare you as you try and navigate this legal minefield in your medical malpractice case.
This journey is not for the inexperienced.
This journey is not designed to be taken alone.
After handling these cases for more than 27 years here in New York, I can tell you that any one of these pitfalls can result in ruin for your case from which you may not recover.
You have better options.
You have better ways to spend your time.
What I often tell people who are considering handling this type of case on their own is to focus on getting your health back as best you can. Let us worry about the legal issues for you.
That's why you hire an attorney. That's why you rely on their experience.
That's why you rely on their guidance and advice.
An attorney who handles these cases on a daily basis is there to help you. He's there to guide you.
His interests are aligned with yours.
Remember, the more money an attorney is able to obtain for you as compensation, the greater fee he will receive for his efforts.
To learn even more about how cases these work, I invite you to watch the video below...