A restrictive intake policy for medical malpractice cases effectively creates its own high threshold for case selection but even so, I utilize an expert to review a case, often to determine whether I should take it, but certainly before I file the complaint. I’m Not a Doctor, But I Play One on TV. Attorneys can be armchair experts in a lot of topics, but analyzing medical malpractice cases is not for the untrained. In some cases, you need an expert to help you understand why a medical provider’s seemingly reasonable care was unreasonable. Or, even in cases that seem like a home run, you need an expert to help you analyze the “but for” pitfalls, informed consent traps and other defenses you will encounter in the litigation. After a promising initial intake, I recommend getting a copy of the medical records from your potential client. Often, it’s easier for the potential client to get those to you, but we have certainly helped pull records from their provider’s online portal. Be sure to obtain sufficient prior records to establish a baseline. Defense counsel mines prior records for preexisting or complicating conditions that can impact causation in your case. In the intake, I also forecast my firm’s policy regarding an expert review. Next, do the assigned reading. Review the medical records (or hey, have an expert do it!), create a capsule summary of your client’s biographical information, review for the potential malpractice, note red flags and, if helpful, create a mini chronology. Medical records are often voluminous and repetitive. I create my own dinky chronology on Microsoft Word to help me track the flow of what happened and what potentially went wrong. There are many areas in which a medical provider (or the provider’s institution) potentially failed. At times, you will see more than what was revealed to you in the intake. Often, because you are reviewing with a critical eye, the logical layperson perception of malpractice does not correspond with the legal and medical complexities of the case. Other cases I call “between a rock and a hard place” cases are actually good potential cases, but the risks or the costs are too high to justify taking it. In any scenario, I still meet with the potential client again to explain my position. If I am still interested in the case after the review, I talk to the potential client and remind them about wanting an expert to review the case. Ninety percent of the time, I cover the costs of the expert review, regardless of whether or not I take the case. If you are serious about incorporating medical malpractice cases into your practice, it is a lot less expensive to “lose” money in the early days of a case than on the eve of trial. In selecting an expert to review your potential case, I happily direct you to the OTLA listserv and sponsors as a valuable resource (see Annual Partners pages 8 & 9). The White Coat Code of Silence: Consulting Versus Testifying Experts. Obviously, the ideal scenario is the expert who reviews your case is also your testifying expert but, in the prologue of a case, you may not have the resources, money or psychic abilities to know what kind of expert you need at trial. Rhett Fraser’s article in this edition (page 20) deftly discusses the qualities and considerations you need for the expert witness at trial. I will not delve into that aspect of case selection except to offer that finding a medical provider in Oregon who will Case Selection: Utilizing Experts in Medical Malpractice Cases continued from p. 51 “Attorneys can be armchair experts in a lot of topics, but analyzing medical malpractice cases is not for the untrained.” 52 Trial Lawyer | Winter 2025
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