LNCtips.com: Profitability Case Analysis
As a new legal nurse consultant, you may think that plaintiff attorneys litigate medical malpractice cases strictly based on professional negligence (duty, breach of duty, causation, and damages). But attorneys for plaintiff firms also analyze potential cases for profitability.
Plaintiff firms work on a contingency basis and usually don't get any money unless the case settles or is tried in their favor. Plaintiff firms don't take cases unless they're potentially profitable, even if the provider's professional negligence seems blatant.
Let's look at some of the most common strategies used by plaintiff firms to select potentially profitable cases and the implications for legal nurse consultants.
Find the Deep Pockets. A deep pants pocket holds a lot of money. A deep pocket defendant, such as a hospital or healthcare system, is one with a hefty insurance policy that can pay out a lot of money. Litigating against these deep pocket defendants is potentially profitable for plaintiff law firms. Depending on state statutes, physician group practices are vicariously liable for the individual physicians in the practice, making such groups deep pocket defendants. Likewise, hospitals are vicariously liable and deep pocket defendants for its employees and others working on its premises such as ER doctors. On the other hand, uninsured physicians are very undesirable defendants unless they have other monetary assets. Implications for the LNC: As you review a case for merit, create a treater list and, if the records indicate, note which physicians are part of groups. Uninsured physicians often have patients sign an acknowledgement of uninsured status so note that for the attorney as well. Some states also have physician profiles, which may list how much liability insurance a physician carries.
Cast a Wide Net. Casting a wide net by naming many defendants in a case can be profitable for plaintiff firms if some of the defendants settle out of the case. Sometimes defendants settle because it's less expensive to do so than to litigate the case. Each settlement by a defendant helps the plaintiff to finance its case against the other defendants. The downside of casting a wide net is that each type of defendant in the case, in some states, is entitled to an expert with the same credentials. This can be expensive for plaintiff firms. For example, in a case of failure to diagnose a stroke in a patient presenting to the emergency room, potential defendants can not only be the ER physician and hospital but also the radiologist, neurologist, neurosurgeon, and others. The attorney would need to retain an expert for each of the physician specialties and for the hospital. Implications for the LNC: A treater list is helpful. Your analysis of the case and identification of professional negligence by each potential defendant is even more important.
If the Client Has Big Damages, Find Liability. Plaintiff firms know that juries award multi-million dollar awards to patients, such as brain-damaged infants, who have had catastrophic damages. Juries figure it's someone's fault if a medical catastrophe occurs. Because of this, juries will readily award the plaintiff a lot of money to compensate for medical errors. Implications for the LNC: You'll need to find every instance of providers' failure to meet standards of care and determine if any of those failures caused or contributed to the medical catastrophe.
Find Clients that Help Their Own Cases. Plaintiff attributes can influence the success, and therefore the profitability, of plaintiff cases. Juries aren't always generous to clients that jury members believe are greedy or contributed to their own damages. For example, juries may view children as greedy when the children claim they are grief-stricken and sue the nursing home where their parent died. This is especially true if jury members learn that the children never visited their parent in the nursing home. Drug addicts, non-compliant patients, alcoholics and those with criminal backgrounds may not be sympathetic to a jury either. Implications for the LNC: If you meet with the potential clients, take a thorough background history and assess their believability and likeability. The client's social history is particularly important to investigate. For example, if the client wants to make a claim of lost wages, tax returns will be very important. Marital status is also important. Divorced spouses may not be able to file a suit, depending on state statutes. When reviewing medical records, record all instances of non-compliance. For nursing home cases, assess family relations including phones calls and visits by children or the personal representative.
Consider these strategies when you're analyzing plaintiff cases. The information that you gather will help the plaintiff firm determine if the case will be profitable.
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