Screening the case

Screening the case is the process by which an experienced medical malpractice attorney will go through to determine whether there is a likelihood of successfully proving that medical malpractice occurred to the patient which caused the patient substantial damages.  There are many factors that go in to the screening process. Documenting the events, reviewing the medical records, retaining a physician expert opinion on the medical record contents, and determining damages.

Remember, the patient or plaintiff has the burden of proof in a medical malpractice law suit to prove the following:

  • What was the standard of care applicable to the care of the patient;
  • That the defendant physician breached that standard of care;
  • That the breach of the standard of care caused damages to the patient;
  • The nature, extent and amount of damage caused by the medical malpractice

Proof of these items generally comes from the medical records and witness testimony.  The most important testimony is the expert testimony that comes from the physicians, including the defendant doctor. 

An experienced medical malpractice attorney who has tried these cases understands how these cases have to be proved in order for the best chance of success with a judge or jury.  He is aware of the evidentiary problems that comes with presenting this type of evidence as well as the practical issues of getting the witnesses to trial.

Given the fact that two-thirds of all medical malpractice cases that were tried in the U.S. last year were won by the healthcare provider, the evaluation of these cases must be rigorous and thorough.  Knowing that malpractice occurred and proving it are two very different concepts.  If the medical records and/or testifying experts do not demonstrate the malpractice in a very convincing matter, the case will be lost.

It is no secret that most judges and juries give the benefit of the doubt in a close case to the healthcare provider.  That is why the proof in these cases must be overwhelming in order to have a chance of success.  Sometimes, it can be extremely frustrating to the patient or his family and the attorney reviewing the case when the documents and/or testimony do not support what we all know really happened in the case.  Remember though, if the evidence results in a tie, the plaintiff loses the case.

The law requires that the plaintiff prove all of the above bullet points by a preponderance of the evidence.  This means that a fact is 50.1% more likely than not.  If a judge or jury believes that the fact is only 50/50 one way or the other, it is not deemed to be proven.

Screening of medical malpractice cases can be time-consuming and expensive.  Experts usually review these cases in their spare time when they are not attending to patients.  Thus, they do not quickly provide the opinions to the attorney.  They also charge huge sums of money to review the voluminous documents.

While the screening process can be complicated and expensive, it is absolutely necessary to ensure the best chance of success in the case.  It would be a disaster for the family to have a lawyer take on a medical malpractice case that was not thoroughly screened and have the case thrown out of court and the family hit for all the costs of defense.  This would make an already bad situation financially worse.

Most medical malpractice lawyers only take a small percentage of the total number of potential cases that are screened.  As stated above, this is usually due to the fact that the evidence does not prove a case by a preponderance of the evidence.  However, even if the lawyer accepts the case, it does not by any sense mean that he is guaranteeing success.  There are too many potential issues that can arise between discovery and trial that can quickly derail the case.

Do not be afraid to ask any lawyer that wants to review your case about his screening process.  While it may seem good in the beginning that he decides to take the case, a loss could place huge financial burdens on the family.