SCREENING CHECKLIST

On average, only 1 out of every 20 medical malpractice enquiries is worth pursuing. Efficient selection of cases that will be successful is a master skill for the malpractice litigator. However, economic considerations must include careful evaluation of all claims.

On average, only 1 out of every 20 medical malpractice enquiries is worth pursuing. For any individual lawyer this figure may vary somewhat, but the vast majority of hopefuls do not have a viable cause of action .

Efficient selection of cases that will be successful is a master skill for the malpractice litigator. Legal screening is the first stage, but most of the 95% that have a fatal flaw will be weeded out at medical screening.

I have developed this checklist to help legal practitioners to judge in which cases they should invest their valuable time, and thus which enquiries should be submitted for medical screening.

The checklist is offered as a prototype for refinement and I welcome input. Each item should not be given equal weight, but generally lawyers should seriously question proceeding to medical screening if less than 5 items are checked. A score of more than 15 is no guarantee of success, but is usually sufficiently encouraging to go to the next stage. Between those extremes, each litigator must find his own balance point, and occasional unusual case profiles will prove exceptions to these general guidelines.

However, economic considerations must include careful evaluation of all claims. Some clients will, of course, benefit from the explanation, interpretation and analysis of the medical issues, even though an action may not be viable.

Achieving a greater degree of "closure" in coming to terms with a tragedy is an important and common motivation, but the compassionate litigator can all too easily spend contingency hours on cases with fatal flaws. An answer for some lawyers is to maintain minimal involvement until medical viability has been established with client funding.

CHECKLIST

Client Characteristics

..1. Main complaint not "attitude uncaring"
..2. Client unusually credible
..3. Survivor rather than victim
..4. Understates rather than exaggerates
..5. Free from personality disorder

Negligence Issues

..6. Independent of causation
..7. One episode
..8. Readily identified
..9. One principal defendant
10. Diagnostic rather than treatment
11. Other caregiver's criticism unnecessary
12. Acknowledged by College of Physicians and Surgeons
13. Would attract settlement offer

Causal Connection

14. Direct and self-evident
15. Res ipsa loquitur unnecessary
16. Precedents in case-law

Maximum Quantum

17. >$20,000
18. >$40,000
19. >$60,000
20. >$80,000
21. >$100,000

Copyright 2009 Electronic Handbook of Legal Medicine