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Sample Chapter: Evaluating And Selecting A Medical Malpractice Case

I. Case selection

A patient, poised to go under the surgeon’s knife for removal of his lung cancer, is given anesthesia which renders him completely paralyzed, but not wholly unaware. Consequently, although the patient cannot move a muscle — cannot even blink an eye — he can hear what the surgeons are saying, and can see and feel what the surgeons are doing. He can see as one of the surgeons lifts a shiny object from a table and feel the pain as the surgeon slices open his chest cavity, cutting through layers of skin and tissue. The patient is still conscious when the incredible pain gives way to intense pressure as a rib separator is used to split his ribs and expose his lungs.

It reads like a scene from a medical thriller, preying on our worst fears and nightmares. However, in truth, it is a summary of the facts from the case of Turner v. Malone .1 In Turner , the plaintiff, Roy Turner, sued his anesthesiologist, Dr. Malone, for failure to render him unconscious prior to his operation. The jury, however, returned a verdict for the defendant Dr. Malone, and the verdict was affirmed on appeal. Why? On its face, this appears like a simple case of clear malpractice: the defendant anesthesiologist failed to completely anesthetize his patient. However, the first thing one learns about medical malpractice is that it is never simple, and rarely — if ever — clear. Moreover, it is almost impossible to predict what can go wrong in a medical malpractice case since there are so many variables which come into play from the choice of venue to expert testimony. This is a complex, specialized area of litigation which requires a lawyer to know not only the law of his case, but the medicine, and further requires him to educate twelve disinterested strangers to these legal and medical nuances. It is also an expensive area of litigation which places a substantial financial burden on the plaintiff’s lawyer striving to bring a medical malpractice action. Expert testimony, a necessity in malpractice actions, can be extremely costly, especially since most plaintiff’s lawyers must look to states other than Georgia to find physicians ready and willing to testify against a local doctor. These cases also are defended vigorously. It is not uncommon for defense firms to enlist numerous, preeminent witnesses also located across the country, and a plaintiff’s lawyer may be deposing medical experts in California on Monday and in New York on Tuesday, all at his own expense.

Realize, too, that in a medical malpractice action, the law favors the defendant doctor or other medical provider from the outset. In Georgia, there is a legal presumption that medical or surgical services were performed in an ordinarily skillful manner, and the burden of proof is on the plaintiff to show a want of due care, skill and diligence on the part of the defendant. 2 If this language is unfamiliar, it will not remain that way for long, and you can bet that the jury will also hear this language as a charge at trial. Overcoming this presumption can be difficult, not just legally, but practically as well. Think of the relationship of a doctor and his patient. Think of the relationship of a doctor and his community. Now, realize that you may have to sue a local doctor in his own hometown where he is a well known and a well respected member of the community.

3 Evaluating claims is integral to the practice of law. However, in light of the unique characteristics, complexity and expense of this type of litigation, properly evaluating a potential claim of medical malpractice at the initial stages is especially critical. As a general rule, medical malpractice cases are demanding both in terms of time and money. From the beginning, a plaintiff’s lawyer must be willing and able to invest the time and money needed to fully evaluate the claim, including exposing potential problems with liability and damages at the outset, before even larger amounts of time and money have been committed to the prosecution of the action. Evaluating a medical malpractice claim is more than just a legal decision; it is a business and ethical decision as well. Initially, you will need to address the legal issues: Is there negligence? Is there liability? Is there causation? Are there damages? However, you will also need to address some practical issues as well: Is this case worth the expense it will cost to bring it to a conclusion? Do you have the time, money and expertise to successfully present this case? If you lose, can you afford not to recover the money you have spent or the value of your time?

Screening malpractice cases early and thoroughly is the only way an attorney can make an informed decision about which cases to accept and which cases to reject. The only successful method for screening cases is to obtain as much information as possible about the claim prior to making a final decision. Generally, the sources for this information will be the client, the medical records, medical experts and the subsequent treating physician.

1. Turner v. Malone, 176 Ga. App. 132, 335 S. E. 2d 404 (1985).

2.Yeates v. Boyd, 50 Ga. App. 331, 177 S. E. 921 (1935); Hayes v. Brown, 108 Ga. App. 360, 133 S. E. 2d 102 (1963); Washington v. City of Columbus, 136 Ga. App. 682, 222 S. E. 2d 583 (1975); Gunthorpe v. Daniels, 150 Ga. App. 113, 257 S. E. 2d 199 (1979); Evans v. DeKalb County Hosp. Auth., 154 Ga. App. 17, 267 S. E. 2d 319 (1980); Porubiansky v. Emory Univ., 156 Ga. App. 602, 275 S. E. 2d 163 (1980); Stephen W. Brown Radiology Assocs. v. Gowers, 157 Ga. App. 770, 278 S. E. 2d 653 (1981); Blount v. Moore, 159 Ga. App. 80, 282 S. E. 2d 720 (1981); Hawkins v. Greenberg, 166 Ga. App. 574, 304 S. E. 2d 922 (1983); Killingsworth v. Poon, 167 Ga. App. 653, 307 S. E. 2d 123 (1983). See O.C.G.A. § 51-1-27.

3. See Cohen v. Baxter, 267 Ga. 422, 479 S. E. 2d 746 (1997) (trial court is not required to excuse for cause jurors who have an ongoing relationship with a physician who is the defendant in a medical malpractice action), rev’g 220 Ga. App. 893, 470 S. E. 2d 450 (1996).

II. Clients

A. Preparing for the interview

Usually, the first contact with your client is the client’s telephone call to your office inquiring about a potential case. Use this opportunity to find out some fundamental information about the client and his potential claim. Either you or a staff member should find out enough facts to determine whether a personal consultation is required. For example, some questions you may want to consider when evaluating a potential medical malpractice case are:

1. What is the nature of the claim?

2. Are the facts shocking or unexpected?

3. What facts establish liability?

4. What are the damages — how permanent are they, how severe are they?

5. What facts establish damages?

6. Is there a problem with the statute of limitation or statute of repose?

7. Who is the proper plaintiff and what type of person is he?

8. Who are the potential defendants?

9. What type of treatment is the potential client under?

10. What doctors or other health care professionals is the potential client seeing?

11. Have other attorneys reviewed the case?

From this initial conversation, you should be able to determine whether an office appointment is warranted. Have the potential client bring any medical records or other related documents to this meeting. Generally, the potential client will come to your office; however, depending upon the individual’s physical condition, you may need to go to his home. Schedule this appointment when you will have plenty of time to spend with your potential client. As with any personal injury action, a thorough and detailed client interview will be essential to evaluating the claim, and it is impossible to elicit all the relevant information if you are rushing to a deposition later that afternoon or if the potential client is concerned about being late to a doctor’s appointment.

If you are not already familiar with the particular area of medicine which the potential claim involves, spend some time researching the area before the meeting. Using a library, a medical bookstore, or access to the internet and Medline, an online medical library, you can obtain articles, books and other materials dealing with virtually any aspect of a particular condition or procedure. This information should provide you with a general knowledge of the topic, including an understanding of the disease or procedure, a basic fluency with the medical terminology and a recognition of the possible complications. It may also be necessary to obtain anatomy charts in order to understand the parts and systems of the body that are involved. In addition, you may want to explore whether there are legal articles written for lawyers regarding handling these particular types of claims.

Although in virtually all cases you will be consulting a medical expert, it is still important to gain as thorough an understanding as possible about the underlying medicine at this initial stage. You will obtain an invaluable insight into what key questions to ask and what critical documents or records you will need. Also, remember that the potential client may have spent considerable time grappling with a specific medical condition with which you are unfamiliar. Learning about the medicine will enable you to communicate more effectively, more knowledgeably and more confidently, and will lay the foundation for a successful future relationship with the client and other medical professionals involved.

B. Client interview

During the initial meeting, you should conduct a thorough interview of your potential client. The goal is to get as complete a picture as possible of the individual and the incident of potential malpractice. In addition to all the fundamental personal and background questions involved with any personal injury action, you will need to obtain a detailed health history from your potential client beginning with childhood and an exact description of the alleged malpractice including all contributing preliminary and subsequent events. It is often difficult to obtain complete information of this magnitude in one sitting; therefore, you may want to have the potential client complete a narrative at home which is responsive to this request. This document is privileged as work product. Instruct your potential client to take several days to complete this task. This document should include names and addresses of all prior and current treating physicians, health care professionals and hospitals as well as complete and candid information regarding the illness, surgery or medical procedure which is at issue.

You may want to consider tape recording the interview. A tape recorded interview serves two functions. One, it will free you to engage in a natural dialogue with your potential client and to observe the subtle nuances and changes in facial expression which may lead to a more thorough and detailed interview. Secondly, by having the tape and, ideally, a transcribed version of the interview, you can review the interview on an as needed basis. Even if an interview is tape recorded, you may still want to take notes in the event the tape cannot be transcribed immediately or you encounter technical difficulties with the tape recording itself.

Take the opportunity at this initial meeting to educate your potential client as to what to expect in a medical malpractice case. For example, discuss how medical malpractice cases are screened, how long the process can take, the affidavit requirement, the necessity of experts and the types of expenses that are involved. Also, explain the basic principles of negligence, causation and damages and get an idea about what your potential client’s expectations are regarding his case.

Do not discount your own personal reaction to your potential client. Medical malpractice is difficult, time consuming litigation. You will be spending a lot of time talking with your client and arguing on his behalf. You need to ask yourself if you truly believe in this case and this individual. Are you willing to take the time and do what is necessary to get this case in front of a jury? If a potential client does not seem credible to you, it is highly unlikely that he will seem credible to a jury.

Beware of potential clients who constantly complain. Not only those who complain about their dealings with other lawyers, but who complain about their dealings with all doctors or all hospitals; these types of clients have a tendency to overstate or embellish their problems. Also, watch for complaints geared toward the doctor or other health care provider personally. Generally, doctors with an indifferent “bedside manner” will garner a larger number of complaints even though their treatment meets the standard of care, and sometimes a patient’s desire to institute a medical malpractice suite can be motivated by a dissatisfaction with billing procedures. One should always be skeptical of handling cases where these factors are present.

Your potential client’s damages deserve special scrutiny. The dynamics of medical malpractice actions which rely primarily on expert testimony to determine negligence make case selection exceedingly important. Because expert testimony is required, medical malpractice cases cost more than most other personal injury actions. Those cases in which your potential client is severely or permanently impaired deserve the closest examination since they may ultimately be your best cases.

Finally, you may want to provide your potential client with some basic guidelines:

1. Your potential client should speak only with you and your staff regarding his claim. If anyone else contacts him, he should notify your office immediately.

2. Your potential client should keep you and your staff aware of any changes in address, phone number, employment, etc.

3. Your potential client should keep everything relating to his cases, such as original prescription medication bottles, medical devices, insurance bills, etc.

4. Your potential client should have a daily planner or diary regarding important events related to the case.

III. Authorizations

At the initial meeting, you should have your potential client sign all necessary authorizations. At the very minimum, you will need an authorization for the release of medical and hospital information. You may also need tax records, employment records, school records, etc. If the case is a wrongful death case, the authorization should be signed by the administrator or executor of the estate. If no administrator or executor has been appointed, then a preliminary medical authorization should be signed by the legal heirs to attempt to obtain medical records as quickly as possible.

IV. Fee Agreements

If you decide to accept a medical malpractice case, you will need to have the potential client sign a written fee agreement. The terms of the arrangement must be reduced to writing and signed by the client before work is actually begun. Like any personal injury action, medical malpractice cases are handled on a contingency fee basis. This means that the attorney earns his fee as a portion of the ultimate recovery in the lawsuit. It is important that your client understand the terms of the contingency, and these terms should be clear in your employment contract. I recommend keeping your employment contract as simple as possible without omitting any important terms. Because of the expense involved in bringing medical malpractice cases, the contingency is usually higher, generally 40 percent, or in exceptional cases 45 percent. Other important considerations include whether you are obligated to represent the client through the trial and appeal and whether your fee will vary depending upon when the matter is resolved, e.g., before a complaint is filed or before a trial. Also, you should include a provision allowing you to withdraw from representation. Other possible provisions include permission to associate counsel and a method for determining attorney’s fees if you are fired by the client during the progress of the case. Lawyers handling cases on a contingency basis do not need to keep a log of their time invested in a case; however, keeping a log of your and your staff’s hours can be of great assistance if you become involved in a fee dispute.

In contingency fee cases, it is imperative that the client understand his responsibility regarding the expense of the lawsuit. The client must know from the beginning of the relationship how the expenses will be deducted from the recovery.1

If you decide not to accept a case, you should send the potential client a non-engagement letter. Non-engagement letters are one of the easiest ways to avoid a potential legal malpractice claim. Non-engagement letters should always be sent certified mail, return receipt requested, and regular U.S. Mail since some people will not pick up a certified letter. Also, a non engagement letter should clearly set out the following elements:

II Your decision to decline representation. Reasons for your decision are not necessary. Opinions about the relative strength and weakness of the claims involved should be avoided.

II Applicable statute of limitation. You should inform the client in general terms that a statute of limitation applies to the potential claim. It is best to avoid providing specific dates or calculate when the statute of limitation will expire in any particular case.

II Advise the client to seek another opinion as soon as possible.

1. Georgia State Bar Rules, Standard 31.

V. Associating counsel

Because of the expense and expertise involved in handling a medical malpractice case, an attorney may wish to associate more experienced counsel. Directory Rule 2-107 deals with fee splitting arrangements in Georgia. You should approve the arrangement with your client first or you may have a provision in your contract which deals with associating counsel.

Just as your client’s fee arrangement is reduced to writing, you also should put the fee arrangement between you and your associated counsel in writing. How the fees should be divided between the lawyers is an issue that is generally resolved between the lawyers. While there is no industry standard on division of fees, the Court of Appeals has held that where there is no writing establishing otherwise, lawyers jointly undertaking to represent a client will share equally in the ultimate recovery regardless of how much work each lawyer invested in the case. 1

1. Nickerson v. Holloway, 220 Ga. App. 553, 469 S. E. 2d 209 (1996).

VI. Medical records

A. Obtaining medical records

In order to evaluate a potential malpractice claim, you will need a complete set of your client’s pertinent medical records from all doctors, other health care professionals, hospitals and clinics. ”Complete set” means everything. Moreover, if your client has been seen for follow-up care with other doctors or at other hospitals, or if your claim involves a course of treatment or a pre-existing condition, you will need complete records from each of these providers as well.

A patient is entitled by law to a ”complete and current” copy of his medical record upon written request from the patient. 1 The statute also authorizes a patient to designate ”any other person” to receive the requested record. 2 Any party requesting a patient’s medical records is responsible to the provider for the reasonable costs of copying and mailing the records, and the provider may insist upon payment as a precondition to furnishing the records. 3 Ordering medical records can get very expensive, very quickly. Yes, you do need it all; do not be tempted to cut corners at this initial and critical stage of investigation.

Have your client execute several authorizations for release of medical and/or hospital records. When ordering a set of medical records, you should order a ”certified” copy. Although according to the law in Georgia you do not need a certified copy of medical records to file the lawsuit, many plaintiff’s lawyers choose to file a certified copy with the complaint. Moreover, you eventually will need a certified copy to properly assert the action, with just one example being to withstand a motion for summary judgment.

Some clients may be concerned about having their lawyer order a set of medical records. For example, if your client needs to continue treatment at a particular hospital or clinic, she may be concerned about having anyone alerted to the fact that she has consulted a lawyer. In this instance, it is perfectly acceptable for your client to order the medical records and forward them to you.

Oftentimes, clients with potential medical malpractice claims may bring their own medical records. Again, it is extremely important that you make sure you have a full and complete set of medical records to evaluate the claim. Medical summaries and abstracts alone are generally inadequate for this purpose. It is extremely difficult, if not impossible, to make an informed decision about a case without all of the relevant information at your disposal. The best time to expose potential problems with liability or damages is before the case is filed, and before substantial amounts of time and money have been committed to the action, not after.

While ordering a complete set of medical records may be relatively easy, receiving complete medical records may be more problematic. Once a doctor or hospital receives a request for medical records accompanied by a lawyer’s letter, your client’s file is suddenly ”confidential” or misplaced. You may encounter a time delay, the documents you receive may not be the documents you ordered, or vital information may be missing.

It is one of your first responsibilities — and in come cases challenges — as a plaintiff’s medical malpractice attorney to ensure that you do receive a complete set of medical records in a timely manner. There is very little a plaintiff’s lawyer can do to ensure that a complete record will be produced at the first request. One possible tactic is to include along with the authorization for medical records a letter to the provider explicitly reciting that the complete chart is being demanded. However, it may be necessary to make telephone inquiries, multiple written requests, or demand to review the record personally prior to its duplication.

If you encounter a time delay, you or a member of your staff should follow up your request for information with a telephone call to inquire about the status of the records you have ordered. You should then send a follow-up letter summarizing the pertinent facts of this telephone conversation. Any additional efforts necessary to obtain a complete set of records should be documented in the event the completeness of records subsequently becomes an issue which is relevant to the litigation. O.C.G.A. § 9-3-97.1 provides a procedure for tolling of the statute of limitation for inability to obtain medical records.

Sometimes, information is genuinely lost or misplaced. However, if a key document is missing upon which the case is based, you must make an effort to obtain “back-up” copies. Medical documents, including but not limited to, MRI’s, CT scans, and x-rays are routinely stored on a back-up.

B. Reviewing and organizing medical records

Once you receive the medical records, you must review them thoroughly several times. These medical records are the foundation upon which you ultimately will build your case. You must know the contents intimately and understand them as completely as possible. For a lawyer who does not have a medical background, this can be a daunting task in itself. Just a few of the documents you can expect to receive include doctors’ orders, doctors’ progress notes, nurses’ progress notes, operative reports, anesthesia records and reports, critical care records, x-rays, radiology reports, medication flow sheets and EKG strips and discharge summaries.

Trying to ascertain if there is evidence of negligence is an even more difficult and demanding job. Doctors are renown for poor penmanship — coupled with cumbersome medical terminology and a system of shorthand unique to the profession, their entries may become virtually impossible to decipher. Moreover, most lawyers, even those with experience in medical malpractice, are not qualified to make this determination and will require the help of a medical expert.

Nevertheless, plaintiff’s lawyers attempting to bring cases alleging medical negligence must become familiar with medical documents and learn medical terminology. Investing in a good medical dictionary as well as books with glossaries of abbreviations can be exceedingly beneficial. Two excellent resources are Stedman’s Medical Dictionary and Taber’s Cyclopedic Medical Dictionary. Once you acquaint yourself with these types of documents, they will become easier to digest, and you will know where to look for information. For example, discharge summaries, which are generally typed in full sentences, may be easiest to read, but may not be the best evidence of malpractice in your case. Remember that these documents are generally prepared at the end of the patient’s stay. When a previous incident has occurred that may be the subject of a potential claim, the discharge summary may ”sanitize” that event. Some of the best notes to review are nurses’ progress notes. Because they are generally made with regularity, e.g., every thirty minutes or every hour, they may contain an excellent record of your client’s stay in the hospital and of events leading up to a potential claim.

A plaintiff’s attorney should also develop an effective way to organize and index the different types of medical documents. This is helpful not only to the lawyer and his staff, but to reviewing experts as well. Moreover, organization can be a cost saver in the long run since it saves time which translates into money as most experts charge by the hour.

Organizing this information can be time consuming, especially for a lawyer new to this arena of litigation. It is recommended strongly that one original set of medical records be maintained intact in the file, and duplicate sets made for organization, indexing and distribution. One suggestion is to index your materials as to category, such as doctor’s notes, progress notes, operative reports, etc. You can purchase pre-printed dividers or you can create your own. You will also want to ”Bates” number a set of medical records. Bates numbering is the process by which a new consecutive page number is assigned to the pages of the documents. This is accomplished via a Bates number stamp, usually beginning with 00001, which is stamped onto the first page of the records. This number then increases consecutively and allows for easy reference and identification of a document. Always send a Bates numbered set of records when including documents for review. This allows you and your reviewing expert an easy reference for discussing pages of the record.

In addition to procedural organization, plaintiff’s attorneys may also want to organize the material substantively. For example, consider creating flow charts and time lines to organize the different types of information according to the date and time it was entered.

A thoroughly organized file is an integral component to successfully evaluating a medical malpractice action. Depending upon your skill level, experience level, medical background and commitment, you can do this on your own, or you may need to enlist a medical professional to assist you with this task.

In addition to their own review, most lawyers will need to have a medical professional review these records to determine if there is actionable negligence or a deviation from the accepted standard of care which would make the case worth pursuing. If you have a friend or family member with a medical background, you may want to enlist their assistance to help you decide if this is a case worth pursuing. For this initial, informal screening, your own personal physician may be willing to review the case. You want to have a medical expert review your file who will give you an honest, objective opinion about the strengths and weaknesses of the potential claim. If you do not know anyone, there are numerous private consultants available who will review your file for a fee. Remember, the key is to have an objective, neutral opinion that exposes both the pros and cons of the potential claim. If you ultimately decide to accept the case, you will need to have an expert sign an affidavit to be filed in conjunction with the complaint.

1. O.C.G.A. § 31-22-2.

2. O.C.G.A. § 31-33-2(b).

3. O.C.G.A. § 31-33-3(a).

VII. Experts

A. Generally

In order to file a medical malpractice case in Georgia, you need expert testimony. O.C.G.A. § 9-11-9.1 requires an expert affidavit to accompany a complaint for professional negligence, which includes medical malpractice. 1

One of the hardest elements of handling a medical malpractice case is locating good, competent experts to review the medical records and to testify at trial. Your experts will play an integral role in determining the ultimate success of your case. Every detail of their qualifications, from their professional education to their personal demeanor, will be scrutinized by the defense and by the jury and will impact your case. Experts’ credentials are important; they will be one of the main avenues of attack used by the defense. Consequently, where the expert went to college and medical school and pursued internships, fellowships or other specialized training and present affiliations are all factors to be considered.

Realize, too, that your needs from your experts will vary depending upon where you are in the litigation, and that you are likely to have several experts during the course of one medical malpractice trial. To file a case, you will need an expert ”competent” to sign an affidavit pursuant to O.C.G.A. § 9-11-9.1. To try a case, you will need an expert who can communicate effectively, basically ”teach” the medicine to the jury. Also, you will likely have separate experts to address the issues of standard of care and causation.

You may want to have more than one expert review the medical records initially. This strategy of ”front-loading,” or having several experts review a potential case before filing a lawsuit, can have several benefits. It exposes the different aspects of the central issues in your case. It will also prepare you for possible defenses you may face once you file suit. In addition, these experts will verify that your file contains all of the information necessary to completely assess your claim. Medical malpractice is information intensive litigation; access to more information and more sources of information can only be an advantage.

B. Locating and selecting experts

For those of us without a medical background and without friends or family actively practicing medicine, locating competent experts who are willing to testify can pose a problem. Add to this financial considerations and time pressure, and the plaintiff’s lawyer may start to feel like a mouse navigating a maze for a piece of cheese. Before you can even begin to locate experts, you must have reviewed, organized and learned the file yourself. You will find it virtually impossible to hold an intelligible conversation about a highly specialized, technical subject with well educated professionals if you, yourself, do not understand the issues involved. Moreover, the research you have done regarding the file will be an excellent starting point in locating experts. Many plaintiff’s lawyers strive to attract individuals who are affiliated with major medical centers and participate in medical education by serving as a clinical, associate or full professor at major universities. Often, those medical professionals who are active in academics are more approachable. These types of experts are generally authors of standard medical texts and articles which can be found through a library or on a Medline search. Moreover, through the Internet, whole faculty lists at major universities can be accessed.

Choosing experts is a combination of strategy and necessity. You should try to select the very best experts that you can attract to the case. You can initiate contact with a phone call. Remember, the medical profession is almost as renown as the legal profession for not returning phone calls. If you have ever tried to call a doctor about a health problem, you are prepared for what you are facing. The task is made only moderately easier by the fact that a sizable fee to the expert is involved. Be prepared to follow up in a conscientious and courteous manner. Your rapport with your experts is important, and when that relationship is good, it can be a distinct advantage to the case. An expert who is aligned with your interests and who believes strongly in your case and your client’s rights will make a stronger presentation and a stronger impression on a jury.

You should ask your potential experts how often they have testified, and how often they have testified on behalf of the plaintiff and the defendant. Experts who testify exclusively or primarily for the plaintiff exhibit a ”professional bias” which will cause a credibility issue at trial. It is better to use experts who testify for both plaintiff and defendant to avoid this problem; however, if you choose to use an expert who testifies mostly for the plaintiff, neutralize any professional bias at trial by hiring another expert who testifies for both sides.

Costs to review a file can vary; experts can charge anywhere from several hundred dollars to several thousand dollars. In most cases, the cost is dependant upon the number of hours the expert devotes to the case. Consequently, you should send your expert a complete, organized and Bates numbered set of medical records. This will save both time and money. I also recommend that you send the records express mail or overnight delivery. After spending substantial time and money to compile a complete set of records, it seems foolhardy not to invest the additional expense of making sure the records arrive timely and safely.

Along with the medical records, you may be tempted to send a detailed cover letter explaining your case and the issues you would like your expert to address. In medical malpractice cases, this may be risky. In Georgia, at least one decision suggests that correspondence with potential experts that contains the attorney’s opinions is not discoverable, but correspondence containing fact is. @S2= Therefore, the safest practice is to avoid raising any issue that could later be construed as fact, and therefore, discoverable. For similar reasons, you can request that no written report be generated by your potential experts since these reports may be discoverable. It is generally not a good idea to put your expert in the position of having to defend an initial opinion rendered before subsequent facts may have come to light. Realize, however, that if your case is filed in federal court, your experts must generate written reports in order to comply with the Federal Rules of Civil Procedure.

After the expert reviews the file and contacts you to discuss the case, be prepared. This is the time to ask for more detailed information. Should the expert’s opinion be favorable, ask to what extent he is willing to become involved. On occasion, the expert may balk at the suggestion of participating in a deposition. Depending on time constraints, it may be appropriate to determine his reasons. He may provide you with enough information to lead you to withdraw from the case. At the very least, use the opportunity to learn about any potential pitfalls.

Obviously, recruiting medical experts is one of the most time consuming and challenging parts of putting together a medical malpractice case. Retaining the expert is a little less troublesome. One of the easiest, most effective ways of retaining your experts is ensuring that someone familiar with the file is available to discuss the case when the expert calls.

Finally, you should maintain a file or database concerning experts you have contacted or used in cases. Even those experts who ultimately decline to become involved should be kept in this file since every contact can be a valuable future reference.

2. O.C.G.A. § 9-11-9.1.

3. McKinnon v. Smock, 209 Ga. App. 647, 434 S. E. 2d 93 (1993).


One of the best possible experts is a subsequent treating physician. One of the few advantages a plaintiff has in medical malpractice litigation is the ability to contact the subsequent treating physicians prior to filing suit. Even if a subsequent treating physician is not willing to testify, you should not overlook a subsequent treating physician as an important source of information for evaluating the claim and providing the names of other potential experts. You will not always meet with success in attempting to talk with a subsequent treating physician; however, the effort should be made. It is important to advise the subsequent treating physician that you are not on a witch hunt and that you are simply trying to obtain information about whether there is a meritorious claim. Again, you should be familiar with the medical issues involved. You will find that doctors and other health care professionals are more willing to speak with a lawyer who appears knowledgeable about the subject matter. You also may want to contact the persons whom you believe to be your prospective defendants, although rarely will they agree to meet with you. In fact, they are usually under instructions from their malpractice carriers to deny any such request.