Prior to working exclusively in the field of alternate dispute resolution, Rich Smukler spent a substantial amount of his litigation practice handling Medical and Legal Malpractice cases.
These types of cases are often considered difficult because of the requirement that one prove “the case within the case.” What this means is that in addition to proving that the attorney or medical provider being sued for malpractice was negligent in some fashion, a plaintiff must also prove the merits and damages of the underlying case. In other words, but for the malpractice, the plaintiff would have fared better if malpractice didn’t occur.
As an example, even if you can prove that a defendant attorney was clearly negligent (missed a filing date or blew a statute of limitations), you must also prove that the case that would have moved forward would have succeeded were it timely filed. In the medical field the same rule applies. So, if a doctor clearly misdiagnosed an illness, you would still have to prove that the patient would have fared better but for the misdiagnosis. This requirement essentially requires the plaintiff to litigate two separate cases, first the defendant’s malpractice, and then the value and merits of the underlying case.
Another major hurdle for the plaintiff is the often extremely laborious and expensive nature of these types of cases. Most attorneys are very selective before taking on representation. Securing experts, depositions, extensive study and evaluation can be very time-consuming. If you are searching for representation, be careful to select counsel who is well versed in these particular specialties and has both a respected reputation and expertise in the field.
Many trial judges will order pre-trial mediation of these cases to help narrow the issues, provide valuable discovery and hopefully resolve the claim. The mediations can be lengthy, but a valuable tool for all parties concerned.