Choosing the Right Attorney
So, you got sued. You are working your way through the various avenues of the legal process and now you have to decide upon representation. How do you know if you have the right attorney? This is a tough question because it is like asking for a recommendation for a good doctor; it is pretty subjective. But there are a few questions you can ask your prospective attorney that will make your choice clearer:
Q. Are you a partner?
Senior partner is the best, but any partner is usually adequate. The logic is that defense trial attorneys typically make partner based on a history of winning the majority of their cases. Unless the person has a family connection with the firm’s owner, a defense trial attorney had to earn their partnership.
Q. What is your win/loss ratio?
The reasoning for this is obvious.
Q. Have you tried any cases similar to mine?
The more times they’ve been to your type of case, the better they’ll try yours. I’m told though, a good attorney can always learn the medicine, so it’s not necessarily a deal breaker if they have not tried a case similar to yours.
Q. Do you represent hospitals in a majority of your cases?
If so, this is not the firm for you. Hospitals often settle out of the case early, and if an attorney handles that type of situation as their main “trial experience” they will likely have problems trying a case from a doctor’s perspective.
Q. Over the last five years, have you settled a majority of your cases?
Again, this goes to trial experience. You could have a lawyer with many years post law school, but if they are not trying many cases and getting experience, they won’t be very good.
In summary, as a general rule, you want an older, experienced trial attorney who typically represents doctors.
So let’s assume you found a “good attorney.” You still may not want to use them. Particularly if they were assigned to you by the insurance company. For instance, let’s just say you are not the only defendant in the case. Things in this situation complicate matters. Often insurance companies will assign all the co-defendants in the case the same attorney. From their perspective, it saves money for them as there is less duplication of efforts (and hours billed).
However, if you think your codefendant doctors may bear some fault, you may want your own representation separate from them. This is especially important if your codefendants happen to be partners in your employer’s company.
Though lawyers are supposed to be fair to all parties, if your company gives them a lot of business, your lawyer may not pursue a defense tactic for you that your bosses don’t like. However, in the majority of situations, it is not a problem to have multiple doctors represented by one attorney.
If your hospital is a codefendant, and you have the opportunity to get your own representation at another law firm, do so! Your hospital codefendant can screw you in so many ways it is not even funny. Here’s how:
1. Magic witnesses
Witnesses that point the finger at you magically materialize at trial that were never mentioned before. They have perfect memories but no documentation to back it up. This happens all the time! This is going to happen whether you have the same attorney or not. But if you have your own attorney they can at least anticipate this and defend you. If you have the same attorney, they’ll dump on you and you won’t have any way to protect yourself.
2. Putting your job in jeopardy
Your hospital can try to threaten your job if you choose a particular defense. Some attorneys might not consider that defense if representing both of you. Better to lose your job than lose your case. You can always get another job. But once you are in the data bank, you are there forever. In a similar vein, if you have the same attorney, the hospital may “choose” your defense for you. The attorney will take care of the “big gun,” the hospital, and you will be hung out to dry.
3. Pressure to settle
The hospital could put pressure on you to settle. Even if you are an employee of the hospital, you usually don’t have to settle just because the hospital does. They often do it for monetary reasons. But if you have a reasonably good case, it is better to press on to verdict. Remember, a settlement is a loss for the doctor.
The hospital may sue you after the case if you lose. This is called Indemnification. Here’s how it works: Let’s just say you have a $1,000,000 policy. If the jury comes in and finds the doctor 50% liable, and the hospital 50% liable, then they are both jointly liable for this verdict. Each has to be responsible for the verdict. So in a 10,000,000 verdict, the doctor’s 1 million limit would be covered by his policy, the other 4,000,000 would be covered by the hospital’s policy. The hospital actually pays 9 million dollars of the 10 million dollar verdict.
Since the payouts are not 50/50 despite the equal liability, the hospital now can (and sometimes will) sue you for the extra 4 million that wasn’t their share of the verdict. Do you have insurance to defend you against the hospital? Not likely.
So you see, the hospital has bigger pockets. Therefore they will shoulder a larger percentage of the liability. And therefore, they are more inclined to settle a case, even if there is a good shot of winning.
Therefore, there is an absolute conflict of interest between you and the hospital. It is for this reason that you must have private counsel.
If, after reading the article this far you realize that you don’t wish to keep this particular attorney, you need to find out if you have options. In Part 1 of this series, I explained that you need to find out if your policy allows you to select your own attorney. There are two possibilities:
First, your policy might say that you can’t choose your attorney. This doesn’t necessarily mean you are stuck. Generally, insurance companies don’t like unhappy doctors.
If you insist on your own attorney, use the term “Conflict of Interest” liberally. Once they hear that (and see it in writing, make sure you have it in writing) they will often acquiesce. This will scare them into thinking that you will sue them in the event you lose, on the grounds that there was a conflict of interest that they knew about and ignored. And actually, you CAN sue them if this does indeed occur.
Second, your policy may say that you can choose your attorney. Or it may not mention the topic at all. In this case you should insist on another attorney. However, this is not always as easy as it sounds. Insurance companies may still try to bully you into thinking that what they say goes. Again, it is in their best interest to spend as little money as possible on the defense and they would rather have everyone represented by one lawyer. If someone says that you have to take what you get, then go higher up. Keep insisting and don’t forget to use the term “Conflict of Interest” liberally.
In summary, you want a good, experienced trial attorney, preferably a partner, who represents doctors most of the time. And if there is even a whiff of a conflict of interest you must insist on your own attorney.
Ilene R. Brenner, MD, is an emergency physician at Piedmont Hospital in Atlanta, Georgia