Screening Personal Injury Cases for Merit: How Medical Experts Can Help

Anjelica Cappellino, J.D.

Written by
— Updated on April 14, 2020

Screening Personal Injury Cases for Merit: How Medical Experts Can Help

Personal injury lawsuits are notoriously tricky. What may seem like a strong or easy case to defend often changes with time. Before taking on a new matter, it’s critical to fully investigate all potential defenses for the injuries sustained. Medical experts are a necessary, yet often overlooked, component of this process.

If retained prior to filing, a medical expert can reliably gauge the viability of a medical malpractice or personal injury claim. Their early involvement can save precious time, effort, money, and resources for both the attorneys and the parties. Below are just a few examples of how and when experts can be useful prior to the filing of a lawsuit.

Preliminary Examinations of Evidence

Most cases alleging personal injuries—especially medical malpractice claims—will need an expert to prove their case at trial. Before accepting cases, it’s critical to have an expert review all relevant records.

Having an expert review medical records to determine claim viability takes a relatively short amount of time. An expert review is particularly time-saving in comparison to how long it would take a non-medical professional, such as a lawyer.  For example, a doctor’s failure to diagnose, or a misdiagnosis, is a frequent type of medical malpractice claim. In cases where the diagnosis was based on imaging scans, an expert in radiology could easily review the available scans. They could easily determine whether a diagnosis was made in error—or completely missed.

A broken bone that resulted from a trip-and-fall might be easy to diagnose, most injuries that result in a lawsuit are more complicated. For example, common yet complex medical malpractice relates to pregnancy, childbirth complications, and other long-term injuries to the child. These suits deal with not just the delivery but the treatments given throughout the entirety of the pregnancy. An obstetrician expert can be helpful in determining whether injuries were caused by physician error or not.

Likewise, injuries involving the neurological system are both complicated and frequent. Neurology is a medical specialty that treats conditions affecting the brain and nervous system, including the spinal cord, blood vessels, muscles, and nerves. Neurological damages can include headaches, sleep disorders, tremors, epilepsy, brain and spinal cord injuries, brain tumors, strokes, Alzheimer’s disease, Parkinson’s disease, multiple sclerosis, amyotrophic lateral sclerosis, and peripheral nerve disorders. Brain injuries are serious and potentially fatal, though the extent of an injury is not always immediately apparent after an accident. Experts in neurology can be particularly useful to retain early on. These experts will account for preliminary symptoms while also monitoring the potential progression of additional damages.

Aside from medical records, the best evidence of an injury is usually the patient themselves. An expert’s independent medical examination prior to any lawsuit’s filing can reveal the core issues of fact. Examinations of the plaintiff will of course occur down the line anyway during litigation. But it is wise to get a step up in building your case and conduct one as early as possible.

Specific Filing Requirements to Commence a Lawsuit

A medical expert is a useful tool prior to commencing a lawsuit, but it is also important to remember that they can also be a requirement. Unlike other types of personal injury claims, medical malpractice typically carries its own set of procedural requirements. This includes  mandated expert review and/or testimony prior to filing a lawsuit.

For example, in New York, Rule 3012-a of the New York Civil Practice Law and Rules requires that all medical malpractice complaints include a certificate of merit. This is a statement that the plaintiff’s attorney has consulted with at least one physician who has concluded that there is a reasonable basis for the commencement of legal action. In addition to New York, 23 other states have similar certification mandates. In these cases, an expert should be the first person consulted before an attorney even thinks of accepting a case.

Staying Mindful of Impending Summary Judgment Motions

Medical expert affidavits are also typically used throughout motion practice, but most importantly when moving for summary judgment. Over the past 15 years, defendants’ summary judgment motions in medical malpractice cases have seen an increase in their success rates. This is in no small part thanks to the offerings of expert opinions.

A successful motion for summary judgment must show that there are no material facts at issue. The moving party must also show as a matter of law, they are entitled to a judgment in their favor. Therefore, the evidence would need to prove that the defendant did not deviate from the requisite standard of care. And if a deviation did occur, this must be proven to be not a proximate cause of plaintiff’s injury. Rightfully so, these motions are almost entirely based on expert opinion. In light of the increasing trends of the courts to rule in a physician’s favor, it is never too early to think about the potential strengths and weaknesses of a potential summary judgment motion by the defendant.

Though a case may seem strong on its surface, it is beneficial to take the extra steps early. Particularly in the pre-lawsuit stage, it is recommended to have an expert conduct a thorough review of the viability of a summary judgment motion. Per Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986), a defendant physician must refute the plaintiff’s claims by specific factual reference. As such, it is useful to have a medical expert scour over the medical records with this standard in mind. Ideally, prior to commencing the lawsuit, an expert can glean potential defenses from medical records as well as any facts to potentially rebut the opposition’s claims. Since a defendant must only establish a prima facie showing there is no triable issue of fact, the burden then shifts to the plaintiff. Summary judgment motions can become relatively complicated and potentially fatal to the plaintiff’s case. With this in mind, it is never too early to discuss the merits with an expert.

A Cost- and Time-Saving Measure

Nothing is more damaging to an attorney than accepting a meritless case that had seemed merited at the time. By the time a case’s flaws are exposed, it is often too late to salvage the time and expense already lost. Though some attorneys might be apprehensive about retaining an expert prior to a lawsuit’s filing, it is a prudent investment.

Expert Institute’s team of in-house medical experts, trained in 10+ specialties, are available to conduct medical record reviews for a fraction of the cost of hiring one expert consultant. Learn more about how Case Clinics can provide a solid foundation for your case before you even file.

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