Choosing a Medical Malpractice Attorney – How to Decide

There is a commercial on the radio which suggests you should not buy a house from a cabdriver who happens to take you past the house. The premise, of course, is that the cabdriver has little or no knowledge of the home or of you. The obvious truth of this simple message extends to almost every facet of our lives. Very few of us would hire someone for something as important as being a babysitter for our children or as relatively mundane as repairing our car without being sure that the person we hire knows what they are doing and has some positive track record that we can rely upon. With that basic premise in mind, I find myself consistently surprised at how often a person will hire an attorney to handle a medical malpractice case (as well as many other types of cases) without knowing who the attorney is; what experience they may have in the field; what their record of success in the field may be; or, where they stand in the eyes of their peers and adversaries.

When a person is injured from medical malpractice, a lawsuit against a doctor or health care provider is usually the furthest thing from his or her mind. Concerns about one’s health; one’s ability to keep working and providing for a family; and, the ability to regain one’s place as a productive member of society are among the far more pressing issues. It is typically not until these concerns have been dealt with or accepted that people even consider whether malpractice might have occurred. Unfortunately, the realization that one’s life altering injury may have been preventable often adds to the difficulty of the situation.

It is within this emotionally charged and upsetting context that the search for a medical malpractice attorney typically begins. Of course, most people do not know which attorneys concentrate their practice in a specific area or which attorneys happen to focus their practice on the highly technical and difficult field of medical malpractice. Most attorney advertising suggests that the attorney who paid for the ad is an expert in every area of the law including medical malpractice. With the personal stresses and without any way to separate out which attorneys truly know how to handle a medical malpractice case, many people will hire the wrong lawyer.

A further part of the difficulty an injured person deals with when he or she considers a lawsuit is the perceived role of lawsuits in today’s society. Lawsuits are not and should not be about a “quick buck” or holding a company up for a “pay day”. The civil justice system is about accountability – about placing blame where it belongs. It is about making sure that those injured are compensated for that which they can never get back. It is about making sure that the individual, regardless of his or her financial or societal status, has the same rights as the rich and powerful. It is about assuring society that we are all equal.

Not every wrong can or should be the basis of a lawsuit. There are, however, many valid reasons to bring a lawsuit. Obviously, the simplest reason is to right a wrong. There is also great benefit to others in our community and our society as a whole in that meritorious lawsuits deter similar conduct. Unfortunately, the role of lawsuits in society has been damaged considerably by media attention of a handful of lawsuits, some of which were portrayed inaccurately to fit an agenda and some of which were portrayed correctly but should never have been brought. The end result is that, for a great number of people, lawsuits are nearly the definition of what is wrong with our society today. Critics of our judicial system depict our courts as out of control, attorneys as greedy and lawsuits as damaging to the economy and society as a whole.

Obviously, these are positions taken to drive an agenda. These critics do not address the accountability and equality a lawsuit can provide. They do not account for the positive societal changes the courts have engendered. They do not account for workplaces and products having been made safer by the effects of a lawsuit. They do not account for the millions of people who have been restored some of the ill-gotten gains fleeced by stockbrokers and corporations. They do not account for the many people who do not need to resort to public assistance for their health needs because a lawsuit has provided sufficient financial resources. In short, they do not account for any of the benefits to society of a lawsuit. Rather, they focus on some examples of ill-conceived or poorly prosecuted cases as representative of our system as a whole.

Take a moment to consider who drives these agendas: insurance companies; big business; negligent doctors and others. We must consider, before we accept their agenda, whether they have our best interests at heart or whether their agenda is designed to avoid accountability and increase profits. There are many questions a person must ask themselves before they even consider whether to bring a lawsuit. The most important of those questions, however, is why, over the course of centuries, wars have been waged and governments toppled by people demanding the equality and justice guaranteed by our courts?

A lawsuit is not appropriate in every instance but the decision to pursue this right should be an individual decision about what, under the circumstances, is right for an injured person and his or her family. The doctor whose mistake puts a child in a wheelchair for life or a young wife and mother in an early grave does not have to live with the family he or she has destroyed. The CEO whose decision to increase profit through the use of a toxic additive does not have to live in the town poisoned by that product. The insurance company accountant who refuses to pay for treatment to a seriously ill person who paid for that coverage does not have to watch the person die because they did not receive the treatment. These individuals do not have to live with the ramifications of their decisions and actions and their agenda to avoid responsibility should not drive the injured person’s decision to bring a lawsuit or not.

Additionally, those injured by medical negligence often consider the personal and societal impact occasioned by prosecuting a suit. Not infrequently, the injured party or their family personally likes the physician suspecting of doing them harm. Even more frequently, a person injured by a medical professional is made to feel that a lawsuit against that doctor will cause the doctor to leave practice or move to another state. These feelings are generated by a well orchestrated and well financed campaign by the medical lobby. The clearly intended purpose of their message is to prevent lawsuits through guilt and fear.

It has been well documented that, not only does New York have one of the highest population of doctors in the country, but more than 50% of malpractice is caused by less than 5% of our doctors. Unfortunately, in most instances, it is the doctors who make up the 5% that orchestrate the media and political spin of the medical lobby. Rather than focusing their attention on improving the quality of care or increasing medical reimbursement rates by HMO’s and the government, which would benefit all doctors and, in large part, all of society, their attention is focused on stopping those most seriously injured from seeking redress in court. Not surprisingly, such an impact only serves to aid those doctors who commit malpractice and, by and large, damages society.

Once again, the decision to bring a lawsuit must be made on an individual basis. The fact that a physician, while maybe not a friend, was kindly or soft spoken as they committed an act of malpractice may be a driving factor in an individual decision. The ultimate question for the individual making the decision on whether to pursue a case against a doctor with a nice personality or demeanor is whether the wrong which was committed, although clearly unintended, is one which we would want repeated. The medical profession, by and large, does not discipline negligence. As such, the only opportunity to prevent a physician from continuing an unsafe practice or procedure is through the courts. Whether one is making this decision for oneself, a parent or a child, the issue is less about who we like and more about whether we would be comfortable knowing that someone else’s child or loved one has become injured because we allowed a tailored, politically driven, highly financed and, ultimately false story about doctors leaving the state deter us from the societal good of preventing bad medicine.

Having made the decision to pursue a potential lawsuit, an injured party must consider which attorney will prosecute the case on their behalf. As discussed above, choosing the right attorney should involve determining the person best suited to winning the lawsuit. Too often, the decision is made on the wrong criteria. The doctors, hospitals, insurance companies and corporate wrongdoers who have caused the injury in the first place have spent considerable time and effort to convince those injured through their negligence that all attorneys can handle any case with the same relative level of skill. They know that a lack of understanding, experience or knowledge by the attorney representing a person injured by negligence, even early in an investigation, can severely damage the ability of that attorney to successfully resolve even the most meritorious case. The standing of attorneys in society, which is generally self-inflicted, has led us to a place where an injured person frequently hires the first attorney they see; a relative; a friend; or, the guy who advertises on the television and radio. While some may be qualified to handle a malpractice case, the reality is that most will not. Needless to say, the generally poor results generated when an unqualified attorney handles a complex malpractice case, exacerbates the poor standing of attorneys in society and the willingness of litigants to feel that any attorney will do. The reality is that not all attorneys are capable of handling medical malpractice cases which are, by their very nature, complicated and difficult.

When making a decision as to who will represent you, your child or your loved one, the decision needs to be based on the same criteria you would rely upon for any other difficult decision. Does the attorney have experience with this type of case? How has this attorney and his or her firm performed on other malpractice cases? What is the standing of the attorney in the community as a whole and in the smaller community of malpractice attorneys? What does the attorneys peers say about him or her? What does the attorneys adversaries say about him or her? How do you interact with the attorney? Is he or she someone you feel you can trust? Does the attorney understand the intricacies of medicine and the law as it surrounds your case? Were you directed to this attorney by someone with your best interests at heart or by an advertisement or person with their own agenda or profit motive? In short, is this person the very best person in the field to properly, professionally and successfully prosecute this case for you, your child, your parent or other loved one?

The insurance companies and corporate America have carefully vetted the attorneys who want to work for them defending the lawsuits brought by people injured by their negligence. They only hire the very best attorneys with the skills to be successful, the knowledge of their subject and the experience to maximize the results for their clients. Before you hire an attorney to represent you in a complex case, you should do the same. It can be overwhelming and it can be difficult to work through the various candidates. However, the decision as to which attorney to hire is too important to leave to chance.

Associate Attorney Employment Agreement

Most law firms that are made up of more than one person are set up as a hierarchy with Partners at the top and varying levels of Associate Attorneys below them. Partners are generally the owners of the business and Associates are employees. The Associates are often given the opportunity to work their way up the ladder to become Partners and share in the profits of the firm instead of just receiving wages.

It is important to have a written agreement or contract between the Associates and the Firm that spells out everyone’s duties and obligations as well as the conditions under which they may advance. The following is a draft contract between an Associate and a law firm that can be customized to meet the needs of a law firm hiring an Associate Attorney.

This AGREEMENT made of this 21st day of March, 2011, between the Law Offices of at Smith, herein referred to as the “Firm” and Joe Blow, hereinafter referred to as the “Attorney.”

Recitals

The Firm is a Sole Proprietorship, operating as a business rendering legal services. If, during the term of this contract, the Firm changes to another form of business organization, this contract will continue to be binding on both the Firm, under it’s new formation, and on the Attorney.

The Attorney is licensed to practice law in the State of Texas.

The Firm and the Attorney desire to have the attorney practice law as an employee of the Firm.

It is agreed by and between the parties as follows:

Section 1. Employment and Duties.

Employment. The Firm employs the Attorney and the Attorney accepts employment as an attorney in accordance with the terms of this Agreement.

Full Time. The Attorney shall devote full working time and attention on the practice of the law for the Firm and the Attorney shall not, without the written consent of the Firm, directly or indirectly rendered services of a professional nature to or for any person or firm except as an employee of the Firm.

Duties and Assignments. The Firm shall determine the duties to be performed by the Attorney and the means and the manner by which those duties shall be performed. The Firm shall determine the assignment of the clients to the Attorney and the Attorney shall perform services for such clients assigned. The Firm determine the rates at which the Attorney’s work shall be billed.

Section 2. Compensation

Salary. For all services rendered by the Attorney under this Agreement, the Firm shall pay the Attorney and annual salary of $58,000, payable weekly or as may otherwise be mutually agreed. The salary may be changed by mutual agreement of the parties at any time.

Bonus. In the addition to the salary specified in 2.1., the Attorney may receive a bonus. The bonus, if any, will be in such amounts as the Firm may determine in its absolute discretion.

Additional Compensation. In addition to the salary and bonus specified in items 2.1 and 2.2, the Attorney will be eligible to receive a percentage of the Firm’s portion of Personal Injury cases. The Attorney will receive 10% of the Firm’s payment from a Personal Injury case, when the Attorney has performed as the primary attorney on that case. Additionally, the Attorney will receive 10% of the Firm’s payment from a Personal Injury case, when the Attorney personally brought the case to the Firm.

Section 3. Partnership. It is the policy of the Firm to employ as attorneys persons who will be given the opportunity to become partners in the Firm. The Firm after a certain number of years will make the determination as to whether the Attorney will be admitted to partnership. The Firm expects to make this determination with respect to this Attorney, no earlier than July 1, 2005, and no later than July 1, 2007.

Section 4. Facilities.

Office. The Firm shall furnish the Attorney with office space, staff assistance, and such other facilities and services as are reasonably necessary to the performance of the Attorney’s duties.

Liability Insurance. The Firm shall maintain professional liability insurance covering the acts and omissions of the Attorney in performance of the Attorney’s professional duties.

Travel. The Attorney may be required to travel on business for the Firm, and shall be reimbursed for all reasonable and necessary expenses incurred, provided, however, that a detailed account of such expense is provided to the Firm.

Professional Societies. The Firm shall pay the Attorney’s dues for memberships in The State Bar of Texas and the American Bar Association.

Education. The Firm shall pay the reasonable amount of expenses incurred by the Attorney to maintain or improve the Attorney’s professional skills. The Attorney agrees to submit to the Firm such documentation as may be necessary to substantiate such expenses

Section 5. Additional Benefits.

Medical Insurance. The Firm agrees to provide medical coverage for the Attorney, the Attorney’s spouse and dependents under a group accident and health insurance policy, the terms and benefits of which shall be determined by the Firm. The Attorney is currently covered under her spouse’s policy and does not require such coverage currently. That Attorney will notify the Firm at such time that she needs this benefit.

Vacation. The Attorney shall be entitled to three weeks vacation time each year however, the Attorney’s vacation will be scheduled at such time as will least interfere with the business of the Firm. The Attorney is further entitled to time off on all holidays normally celebrated in accordance with the Firms stated policy.

Life Insurance. The Firm may provide group life insurance coverage, in amounts which shall be determined by the Firm.

Retirement Plan. The Attorney shall participate in any Firm qualified retirement plan according to the terms of said plan as amended from time to time.

Disability. In the event the Attorney is unable to perform his or her regular duties as a result of personal disability the Firm will pay the Attorney’s salary during such disability for a total of ninety (90) days in any 24 month period.

Section 6. Operations.

Records and Files. All records, documents, and files concerning clients of the Firm shall belong to and remain the property of the Firm. On termination of employment, the Attorney shall not be entitled to keep or reproduce the Firms’ records, documents or files relation to any client unless the client shall specifically request that its files be transmitted to the Attorney.

Fees. All fees and compensation received or realized as a result of the rendition of professional legal services by the Attorney shall belong to and be paid to the Firm. Any fee or honoraria received by the Attorney for professional services or other professional activities performed by the Attorney shall belong to the Firm.

Section 7. Term.

One Year, Automatic Extension. The term of this Agreement shall begin on the date hereof and continue for a period of one year and shall be automatically extended from year to year unless terminated in accordance with this section.

Events of Termination. This Agreement shall be terminated upon the happening of any of the following events:

The death of the Attorney.

The determination of the Firm that the Attorney has become disabled.

Dismissal for cause of the Attorney as hereinafter provided.

Occurrence of the effective date of termination, notice of which has been given in by either party to the other, so long as there are at least sixty (60) days between giving of the notice and the effective date of termination.

The mutual written agreement of the Attorney and the Firm to termination.

Termination on Disability. The Firm may determine that the Attorney has become disabled for purposes of the Agreement in the event that the Attorney shall fail, because of illness or incapacity, to render for ninety (90) days or more in any two-year period, services of the character contemplated by the Agreement, and thereunder shall be deemed to have been terminated as of the end of the calendar month in which such determination was made.

Causes for Dismissal. The Firm may dismiss the Attorney for cause in the event it determines there has been continued neglect by the Attorney if his or her duties, or willful misconduct on the part of the Attorney, including buy not limited to a finding of probable cause by the Bar for investigation a complaint filed with its discipline system or the filing of criminal charges against the Attorney, which would make retention of the Attorney by the Firm prejudicial to the Firm’s best interest.

Section 8. Miscellaneous.

Notices. All notices under this Agreement shall be mailed to the parties hereto at the following respective addresses:

Attorney:____________

Firm: ____________

A change in the mailing address of any party may be effected by serving written notice of such change and of such new address upon the other party.

Invalidity. The invalidity or unenforcibility of any provision or provisions of this Agreement shall not affect the other provisions, and this Agreement shall be construed in all respects as id any invalid or unenforceable provisions were omitted.

Arbitration. All disputes, differences and controversies arising out of, under, or in connection with this Agreement shall be settled and finally determined by Arbitration under the then existing Rules of the American Arbitration Association.

The parties have executed this Agreement as of the date and year first above written.

By:____________________________________________________

10 FAQ’s for Attorneys Appointed Under a UK Lasting Power of Attorney

Lasting Powers of Attorney – The role of the ATTORNEY – UK

Have you been asked to be an Attorney and are you wondering what this really means? Are you concerned that you don’t know what to do?

This article explains your role and answers some key questions.

Lets start with what is expected of you as an Attorney.

FAQ’s

1. What does an Attorney have to do?

An Attorney is someone who has the authority to make decisions and act someone’s behalf.

So, you would be expected to make decisions and carry out tasks on behalf of the person who signed the Lasting Power of Attorney.

The following information should give you a good understanding of purpose of an LPA, but first, a little more background.

2. Who can be an Attorney?

Anyone over 18, you can be a friend or relative and people frequently ask their spouse to do it. Normally it is someone they trust and who knows them reasonably well. You can choose a professional attorney who will be paid for their service.

3. When do I actually have to do something? When do I become the attorney?

If the person with the LPA becomes too ill to look after their own affairs, then you as the attorney can start to make decisions and manage their affairs for them.

We call this losing capacity. You lose capacity if you are unable to make decisions.

4. How can I tell if someone has lost capacity?

Often medical staff will be the first to declare that someone has lost capacity. But you should still consider for yourself whether you think that they are able to make a decision. The law gives guidance on decision making:

  • Are they unable to understand information relevant to the decision?
  • Can they retain that information?
  • Can they weight that information as part of the process of making a decision?
  • Can they communicate it (whether by talking, using sign language or any other means)?

It may be that the incapacity is only temporary, but you may still be required to make decisions for them if they are incapacitated for a short time.

There is more information in Part 3 of the Mental Capacity Act Please bear in mind that the reason for the incapacity could be physical or mental, it could be due to accident, illness or for another reason. What is important is whether they are “incapacitated”.

If you are unsure, you must get further advice. Talk to medical professionals who are treating the person who made the LPA.

Please note that it does not matter if the person is making unwise or unexpected decisions, you may not agree with them but that doesn’t mean they lack capacity. Remember, you can only act when they are no longer able to make decisions.

As an attorney you should try to help the person who signed the LPA to make their own decisions if possible.

Useful information on the capacity to make decisions can be found in the Mental Capacity Act Part 3

5. What decisions can I make? What does “manage affairs” mean?

The first thing you should do is look at the LPA document. There are two types and you may be an attorney under one or both types of LPA.

  1. Lasting Power of Attorney – Health and Wellbeing or,
  2. Lasting Power of Attorney – Property and Financial Affairs.

If you are an Attorney under a Health and Wellbeing LPA you may be asked to make decisions about various aspects of the persons personal life. For example, you could be asked to make decisions on what medical treatment they receive or where they are to live, even what they eat and wear. You will only do this if the donor has lost the capacity (ability) to make the decisions for themselves.

If you are and Attorney under a Property and Financial Affairs LPA you can make decisions about money and property, you can pay bills, collect benefits and even sell the persons home for them. You can use authority this at any time, the person making the LPA does not need to have lost capacity.

6. Doesn’t this give me a lot of responsibility?

Yes, it does. You are in a very privileged position to help someone you care for. The LPA gives you the power to access someone else’s money and property and make intimate decisions over their personal lives.

However, you cannot abuse your position. You are legally obliged to always act in the persons Best Interests. This means you can only act on their behalf and you cannot make any decisions that aren’t in their best interests. You must also take reasonable care when making the decisions.

For guidance on what “best interests” means, you should look at Part 4 of the Mental Capacity Act.

Checklist:

  • Has the LPA been properly stamped by the Office of The Public Guardian? The LPA must have been completed and registered with the Office of the Public Guardian before you can do anything as an attorney.

Read through LPA document.

  • Look at any restrictions in the LPA has the person written anything in it? Look at page 6, section 5 of the LPA and make sure you comply with these restrictions. At section 6 the donor may have given the Attorneys guidance. This is does not have to be followed but should give you an idea of what the donor would have wanted if they still had capacity and it may help you decide what is in their best interests.
  • Does the document allow you to make decisions alone or do you have to make them with someone else “jointly”? You must make sure you comply with these directions. If it says “severally” this means that each attorney can act separately to the other attorney(s). Look at the LPA on page 5. You need to make sure that you can communicate with any other attorneys, especially where need to make decisions together.

Are you clear on your role and responsibilities? If not, have a look at chapters 4 and 5 of the Code of Practice of the Mental Capacity Act.

7. What happens if I have to spend my own money?

As a donor you are always entitled to claim your reasonable out-of-pocket expenses that you incur on their behalf. You should always keep a record and receipts for these expenses.

The donor may wish to pay a professional attorney for their services, in which case this will be detailed in the LPA on page 6 at section 7.

8. Do I have to be an Attorney?

No, you don’t. It is always better to tell someone that you don’t want to do it at the time they are making the LPA, so that they can choose someone else. If you withdraw later it can cause many problems and a lot of confusion.

9. Can I operate a bank account for the donor (person who signed the LPA)

Yes, you can if the LPA is a Property or Financial Affairs LPA. Always look at the guidance and restrictions in the document. Also make sure that you only use their money for their best interests.

If you are managing a bank account for someone else and finding the bank is not being helpful, then have a look for the “British Bankers Association Guidance for Consumers”. It gives guidance to you and the bank to help the attorney to access an account. You may wish to take it to the bank to remind them of their role.

10. Can I act on behalf of a parent, child or friend who has completed but not registered the Lasting Power of Attorney?

No, unfortunately it doesn’t matter how much you care for them or how much they would like you to help. It must be registered or you will not have the authority you need to conduct their affairs. In these circumstances you will unfortunately have to apply to the Court of Protection for the authority to act. They have to make a decision who should help and they usually place restrictions on the role of the attorney.