"THIS BOOK MAY SAVE YOUR LIFE"
By H. Barry Jacobs, M.D.

THE QUALIFICATIONS OF A MALPRACTICE ATTORNEY
Chapter 6 By Lawrence Landskroner

Malpractice is professional negligence in which someone in a specialty such as medicine, law, engineering or a like profession make a mistake so as to cause injury to an innocent victim. It is based upon the practitioner's failure to conform to a se of professional standards in a given area of expertise.

To the physician, malpractice is a dirty word. The idea of malpractice attacks his or her competency. It has as marked effect on his or her standing with colleagues, community can cause financial disequilibrium.

It is natural and unfortunate that the physician sued for malpractice will see the true adversary not as the plaintiff but as the plaintiff's lawyer. Many doctors believe that lawyers are the cause of this predicament. The physician has been conditioned to an objection scientific orientation and a contest with emotional overtones is disruptive. A lawyer typically sees a challenge in court, whereas the doctor sees a trial as an unnecessary insult, especially when his or her own or a colleague's treatment is the issue.

If some one were to be injured because of a bridge falling, machine blowing up, a tire exploding, or some other misadventure caused by negligence of someone in the field of engineering, medicine, automotive design or the like, the need for a malpractice lawyer arises. This type of carelessness calls for special type of lawyer.

Are we really talking about professional negligence or medical negligence? Professionals other than doctors are also responsible within the malpractice law: Funeral directors, insurance agents, engineers, attorneys, architects and so forth. We are all negligent in practically every day of our lives. People make two kinds of mistakes is this regard: reasonable mistakes that happen in the ordinary course of living and unreasonable mistakes. When we make unreasonable mistakes, responsibility is crated. If you take the negligence of a professional and compare it with the negligence of his fellow citizen, who is a non-professional, there is on difference, and that difference is the test of conformity.

Considering all the items and commentary contained in this article it will be apparent to even the most casual observer and reader that this area of the law requires someone with an expertise over and above that of the general practitioner, the local lawyer. It is suggested that when the area of responsibility is violated by someone in one of the foregoing categories, the injured party will need a specialist in the field of malpractice law.

Insurance propaganda typically declares that companies are always willing to pay just claim for reasonable amounts, but every trail lawyer knows that the natural reaction of most companies upon the filing of claims against them is to pay as little as they can get away with and nothing at all when possible. The book, Defense Attorney and Basic Defense Tactics, state, "one of the cardinal rules which the defense attorney should follow as soon as he can receive an offer of settlement, is to quickly advise that it is entirely too high even if the offer submitted is less than a defense attorney expect to pay. His answer should be the same. The offer is too high." Defense lawyers use this book as their bible in learning negotiating tactics.

The defense lawyer's fee is usually fifty dollars ($50) to one hundred dollars ($100) per hour. The attorney always gets paid! Insurance companies usually hire skilled attorneys for the defense of malpractice cases. They are provided with ample expense money. Their salaries and expense accounts are high enough to enable then to attend conventions and seminars. They develop even grater skills for defeating or greatly reducing the claims of injured victims than experience and talent alone would provide.

A plaintiff's lawyer must be equally competent and must spend just as much time in statewide or national educational sessions to become better able to handle malpractice claims. This places a financial burden on the plaintiff's lawyer. The plaintiff and his or her lawyer must be able to counteract the enormous amounts of money that the malpractice insurance companies use to defend their doctor-clients.

It is fundamental to the rights of patients that the physician makes a skillful and careful diagnosis of the ailment. If the doctor fails to diagnose with proper skill and care, or makes an incorrect diagnosis, he or she must be held liable to the patient for the damage caused, just as readily as the practitioner must me made to answer for the application of improper treatment.

Did this doctor do what a reasonably prudent doctor with the same approximate skill would have done under the same circumstances? In other words, did this doctor conform to the general average of professionally acceptable conduct? The standard of conduct becomes on of good medical practice which is customary and usual in the profession.

Another area of responsibility is the failure to disclose serious risks involved in the proposed treatment. It is the physician's duty to disclose the risks involved in any procedure.

A major problem in the practice of medical malpractice law is the conspiracy of silence by and between doctors. The understandable reticence of a doctor to swear away the reputation of a colleague is encouraged by the insurance malpractice carriers. The defendant should be cross-examined vigorously to determine if negligence has occurred. Vigorous cross-examination is necessary because as Will Rogers observed, "I always like to hear a man talk about himself, because then I never hear anything but good."

Some case do no t require the testimony of a doctor for example, the removal of a breast without a preliminary biopsy. Malpractice in some cases is so obvious that a lay person can fin a verdict against the defendant without medical testimony.

Picking the jury in a malpractice case is difficult. To sure a doctor is to sue someone who, in the public's mind, is on a pedestal.

In trying a case, the plaintiff's lawyer must prove by hard evidence the decrease in the victim's prospective earning capacity, the disfigurement of other damage done to the plaintiff's body, the shortening of the life expectancy (this is done with the assistance of an economist), past and future medical expenses caused by the action of the doctor, actual loss of income, damages to family life and its enjoyment, past and future pain and suffering, past and future fright, anxiety and mental anguish, and appropriate wrongful death damages in cases when the patient died as result of the practitioner's negligence. The foregoing items are not just legal jargon but are a very realform of human suffering and evidence of same is necessary in the presentation of the case to the jury.

The trial lawyer that handles this very specialized type of case must be a psychologist, psychiatrist, doctor, expert in evidence, playwright, director, and a consummate judge of human nature. The attorney must be adept at selecting humanistic juror with an impartial and realistic attitude toward often God-like doctors and hospitals. He or she must understand medical terminology, be able to read hospital reports, X-rays, and diagnostic test with the appropriate symbols and abbreviations to see if the defendant doctor performed the right testing, took the proper X-rays, or exercised proper skill in diagnostic technique to ascertain the ailment. He or she must be able to explain, understand, and educate lay persons on a jury panel as to what the surgeon did in the course of treatment which deviated from the standard acceptable through the country, and which caused the injury or maiming of which the patient complained. An understanding of proper drug dosage, the synergistic effect when combined, and their effect, if any, on a human being of a given size, weight and sex are important.

He or she may also have to understand engineering to know what construction defects contributed to a breakdown of the equipment used. The attorney must be able to bring an expert into court who can understand and explain to a jury the design, construction, and safety of a cautery instrument, pacemaker, heart-lung machine, or the like. He or she must also be able to hold the manufacturer or the producer of this equipment responsible along with the user of the equipment, for improper use. A design engineer may have to be brought in to testify that the design of the implement was improper.

Other factors need to be considered. Where the case are tried, the economic status of the prospective jurors, the part of the country in which the case is located, and the feeling of the populus in that given section, whether it be the Midwest, the far West, or the East are important. Regionally, the jury's wanting or not wanting to penalize the doctor for making a mistake is a significant factor. For example, in California, doctors have a greater tendency to be held responsible for their mistakes than they are in New England or mid-America because of the generally more provincial attitude of the jurors in one jurisdiction as opposed to the other. Therefore, a case that would be worth one Hundred thousand dollars ($100,000.00) in Ohio might be worth three hundred thousand dollars $(300,000.00) in California.

A lawyer must also be a good negotiator and be able to understand the implications of the defense lawyer's statements. If the defense lawyer says that he has only one hundred thousand dollars ($100,000.00) to pay on the case, does he really have more? Is the lawyer hedging?

Timing is important. Some cases are settled better in the beginning and some are settled better when the jury is out deliberating. Certain cases should be allowed to go to verdict because the jury might give more than a defense lawyer feels the defendant would be required to pay. Above all, the plaintiff's lawyer in the malpractice field should have the profound skill of a "Nick the Greek" gambler in computing the "odds" of recovery. This means, of course, that he should not be bluffed out by the contentions of the other side, and the attorney should understand the subject matter that is being litigated.

Lawyers competent to handle this type of litigation involving all these sub-specialties and areas of expertise are few and far between. The lawyer must have consummate trial experience to overcome the classic defense argument, which is usually made in this type of case. The defense lawyer tries to explain away the doctor's mistake. He will say his client has done everything humanly possible t save the life of his patient and the thanks that he get is to be hauled into court and sued by an ungrateful patient. It is now easy to see why most trial lawyers will not engage in this complex area expertise.