The more a party knows about what is happening at the trial, the easier it is
to stay intellectually involved. An informed client, particularly a defendant
in a medical malpractice case, is also an asset to the attorney. The client can
assist with the review and organization of records, the evaluation of
witnesses, the analysis of testimony, and other tasks that require special
knowledge of medicine or the facts of the case. In addition to the advantage
that this gives the physician's attorney, it reduces the anxiety associated
with litigation by reducing the uncertainty.
Despite the salutary value of becoming a partner in their litigation, few
physicians involve themselves in the preparation of their cases. There are
several reasons for this lack of involvement. If the attorney is being paid by
the insurance company, the physician has no short-term financial incentive to
assist in the case. The attorney will hire the necessary personnel to prepare
the case and bill the insurance carrier. Even when physicians are paying their
own legal bills, it is unusual for an attorney to explain the potential savings
that might accrue if the client assists in the case.
Attorneys cannot completely control the progress of a case through the courts.
For example, an attorney may work diligently at setting the depositions in a
case. If all the witnesses are available, the case can proceed; if a witness is
not available, it may delay the case for months. Whenever an attorney files a
motion with the court requesting action from opposing counsel, the opposing
counsel has ten to sixty days to reply. Ideally for the client, the attorney
will push the case forward at every opportunity. The reality of law practice is
that attorneys work on so many cases simultaneously that they cannot push every
one forward. This differential attention helps level out the work flow in the
attorney's office, but it slows the resolution of each case. In the worst
situation, the attorney becomes reactive, only responding to actions by the
court or opposing counsel. If opposing counsel on the case is also in a
reactive mode, the case can languish for years.
All attorneys share the problem of getting good expert witnesses and help with
the preparation of cases. Even when experts are available, they are expensive
and time-consuming to deal with. Few clients, insurance companies included, are
willing to hire an expert witness to do more than testify in a case. Attorneys
in medical malpractice cases often get by with the help of nurses and their own
expertise. But even attorneys with medical degrees find that there is not
enough time to be both a good lawyer and a good doctor.
The Medical and Public
Health Law Site
The Best on the WWW Since 1995!
Copyright as to non-public domain materials
See DR-KATE.COM for home disaster preparation
Edward P. Richards, III, JD, MPH Webmaster
