30 Trial Lawyer • Fall 2023 By Brendan Dummigan OTLA Guardian By Deena Sajitharan Medical malpractice cases are con- sidered to be among the most challenging from the plaintiff’s lawyers’ perspective. These cases require you to become an expert in the technical and medically-nuanced subject matter that forms the basis of your case, take up an extraordinary amount of time and are very expensive to pursue. On top of this, individual medical providers commonly have a “consent clause” in their malpractice policy that gives them veto power over engaging in settlement discussions. If they settle a case, their name goes into the national data bank of providers who have settled cases. (U.S. Department of Health & Human Services National Brendan Dummigan Deena Sajitharan Practitioner Data Bank, https://www. npdb.hrsa.gov/guidebook/EMMPR.jsp) For this reason, and more, when considering whether to take on a medical malpractice case, you should think long and hard about it. At a minimum, if you are inexperienced in this area, associating with someone who has experience is a must. Case selection The phone rings and you are speaking with a potential client regarding their desire to sue their provider or hospital after something bad happened. In a recent case we tried, the call came from a 32-year-old woman who suffered a stroke four days after receiving a neck adjustment performed by a chiropractor. We, like we always do, began by asking very basic questions starting with who the provider is. We research whether or not the provider has any reported malpractice cases or board orders listed on the Oregon Medical Board website or other state licensing authority. (Oregon.gov License Verification, https://www.oregon.gov/omb/ licensing/pages/license-verification.aspx) Occasionally, this will provide some insight into whether the provider has professional conduct issues that may make it easier to prevail. In this instance, there were no reported claims against the chiropractor or clinic. One rule of thumb — never take a case until you have met with the client, the parents of a child client or the family of the decedent on behalf of whom you will bring the claim. Your relationship with your client, their parents or surviving family members will likely last years. How they present, their background and their ability to work cooperatively with you are crucial. If they are angry and say the case is not about the money, ask more questions and tell them money is all they’re ever going to Lessons Learned Navigating Medical Malpractice ...never take a case until you have met with the client, the parents of a child client or the family of the decedent on behalf of whom you will bring the claim.
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