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I moved this discussion from another thread.

KMeister wrote:
"One has nothing to lose other than a little time and possibly everything to gain by talking to a lawyer and weighing his options."

alibaba wrote:I disagree with you there. Here in Missouri, like many other states, the loser has to pay the legal fees of the winner. I've been involved in a case for 4 years now. The opposition has padded up their side with 3 attorneys and pile all sorts of fluff into the matter to pad up the bill to use as leverage to get us to settle. There have been offers to settle that are a pittance but the bottom line is it a gamble before the jury. Either way the opposition is getting paid. By the insurance company or by us if we do not prevail. It is not accurate to say there is no risk to sue. In a malpractice situation many states like ours have a cap on what you can collect. I am aware of one case here where the attorney fees were in excess of $175,000 and the damaged person received $6 grand + after all expenses. That person is a quadraplegic now. That is no compensation for a life in a wheel chair blowing through a straw but that was what it was settled for and approved by the court. The offer sounded nice till all fees were taken out and the victim receives the residual amount. You cannot sue for malpractice without another doctor specifying what mistake the doctor did. I find in my case every doctor says "I would not have done it that way" but none will specify that Milam acted in an improper manner. All say I have issues but also say those issues are common with infrapubic implants. Doctors just do not rat on each other most of the time. If your doctor was in another state then you have the issue of suing in federal court which is more expensive and more strict rules. Advice is to not take suing someone lightly. It is no game. There will be a winner and loser and things will be twisted many ways before the end.

True, the loser has to pay the legal fees of the winner--if the parties go to trial. However, as you probably already know, over 90% of all civil cases in America never go to trial. That's in the second place. In the first place, my claim was that one had nothing to lose other than a little time and possibly everything to gain by talking to a lawyer and weighing his options (emphasis mine). My point was that talking to a lawyer to see if one might possibly have grounds for a lawsuit doesn't cost anything. A person might choose not to pursue legal action after the free consultation with an attorney. Also, a person might retain an attorney to contact the other side to see if a settlement can be reach in lieu of filing a suit. So I believe my position that consulting with an attorney to weigh one's options involves little investment other than time is on solid ground.

KMeister

Unless there is a special statutory provision or contractual agreement, the loser in a lawsuit in the United States is NOT liable for the other side's attorneys' fees. Now, in England and some other countries the loser does have to pay the other side's attorneys' fees.

Although I am a lawyer, I am not giving legal advice and what I say should be taken with the following caveats. First, except for two cases early in my career (approximately 30 years ago), I have not practiced in the area of medical malpractice. Second, in each of the two malpractice cases in which I was involved, I represented the doctor/defendant.

My basic view as a lawyer is that if someone feels that he or she might have a legal claim, he or she should consult a lawyer. Just because your friend or someone on the internet says you might or might not have a viable claim does not make it so. If you decide to consult a lawyer try to find one who is familiar with the type of case you think you have and is located in the place where the suit will be brought if it is viable. Not all lawyers are created equal and the laws and practicalities of bringing suit vary by jurisdiction.

One thing to keep in mind is that there is a large gap between a perfect result and malpractice. A bad result is not necessarily malpractice. Successful lawyers who represent plaintiffs are good at distinguishing bad results from malpractice. Given that a plaintiff's lawyer does not get paid unless he or she can negotiate a settlement or win at trial, a lawyer typically will not take on a case unless he or she feels that it is a winner.

So, my bottom line is talk to a lawyer. You may not get the advice you want. But you will at least be better informed. Finally, if you think that you have a clain, do not sit on it. Statutes of limitations vary greatly among the states and even within a state they may vary depending upon the type of claim or who the defendant it. Lawsuits do not get better with age and if you wait too long your suit may be precluded by a statute of limitations even if it otherwise would have been meritorious.

Your remarks are very informative and helpful, Otto. I was especially impressed with your explanation that a bad result is not the same as malpractice. Your position perhaps begs the question: For implant patients, at what point does bad result end and malpractice begin?

KMeister

KMeister wrote:Your remarks are very informative and helpful, Otto. I was especially impressed with your explanation that a bad result is not the same as malpractice. Your position perhaps begs the question: For implant patients, at what point does bad result end and malpractice begin?

KMeister

That is a very good question that I cannot answer directly. The relevant question is whether the physician breached the reasonable standard of care applicable to the procedure. That is a factual question for which you would need an expert in the field to supply the answer. The hardest thing in a medical malpractice case is finding a qualified doctor to give an opinion that another doctor has breached the standard of care.

OttoHS wrote:

KMeister wrote:Your remarks are very informative and helpful, Otto. I was especially impressed with your explanation that a bad result is not the same as malpractice. Your position perhaps begs the question: For implant patients, at what point does bad result end and malpractice begin?

KMeister

That is a very good question that I cannot answer directly. The relevant question is whether the physician breached the reasonable standard of care applicable to the procedure. That is a factual question for which you would need an expert in the field to supply the answer. The hardest thing in a medical malpractice case is finding a qualified doctor to give an opinion that another doctor has breached the standard of care.

And this is quite a different issue than product liability--in which the device itself malfunctions (the pump fails, one of the cylinders collapses, the reservoir springs a leak, etc.). If the device malfunctions the patient is entitled to a free new one but he still has to incur the cost of the doctors' fees and operating facility's fees. Bummer.

KMeister