When a birth-related medical error causes harm or death to a mother or child, it’s critical that the family seek counsel from a lawyer and legal team experienced in successfully litigating birth injury cases. Research is essential, but despite the barrage of ads and the ability for most of us to quickly access the internet, that may not be easy to do.
For parents who have encountered this unfortunate or even tragic circumstance, most would say they found an attorney by:
- Contacting an attorney whom they’ve previously consulted on another legal issue;
- Asking friends, family members, or co-workers for the name of a “good lawyer;”
- Responding to an attorney’s television, radio, or billboard ad; or
- Searching on Google or social media.
There’s nothing wrong with any of these options, as long as the parents further research their options. Here are several questions – and the reasons behind them – to ask when interviewing an attorney to represent you and your family in a birth trauma lawsuit.
“How long have you been handling birth injury cases? How many cases have you handled to completion? How many of those cases settled before trial and how many were tried to a verdict? How many were dismissed?”
These questions are fundamental. You can’t rely on what you read on a law firm website or lawyer directory, especially when the attorney’s biography fails to tell the whole story about his or her experience. Birth injury cases fall under medical malpractice, which falls under the category of personal injury. But not every personal injury lawyer handles medical malpractice matters, and not every med mal attorney has experience in birth injury claims.
Similarly, you need to know how long the attorney has focused on birth injury lawsuits, whether that extends over a decades-long career or just a few years, and how successful he or she has been. The overwhelming majority of all lawsuits are resolved before going to trial, but that doesn’t mean those cases settle. The same is true for birth injury cases, and a capable attorney should be ready to discuss the number of matters he or she has tried, settled, and lost.
“Have you represented children whose parents are physicians or attorneys?”
When a birth injury or birth-related death occurs within a physician’s or lawyer’s family, you can be sure that professional will find the most qualified attorneys to recover damages and hold the negligent doctor, nurse, hospital, or other healthcare provider accountable.
Sometimes, the insurance company or self-insured hospital may opt to settle before the attorney files a lawsuit. An experienced birth injury lawyer will determine if this is in the best interests of the plaintiff.
“Have you written books or articles addressing birth injury law? Have you given presentations to doctors, hospitals, or their attorneys regarding birth injury liability? Can you send me a copy of your resumé or professional biography?”
We’ve all heard the euphemisms that someone widely considered an expert “wrote the book” on a particular subject, or that the expert is the “go-to” person in a specific field. The same is true for birth injury lawyers.
Medical-legal publications approach experienced birth injury attorneys to write or contribute to textbooks and articles that are reviewed and scrutinized by other experts before publication. When lawyers wish to increase their knowledge of birth trauma, they often attend educational programs featuring veteran birth injury practitioners. Even obstetricians and pediatricians – particularly those who want to improve their risk management methods – attend conferences where seasoned birth injury attorneys discuss recent developments and ongoing trends.
Given their knowledge and credibility, you would be wise to identify and interview accomplished lawyers who write and speak on birth injury topics. Ask for copies of written works and a list of not only presentations but the groups to which those presentations were given.
Have you received professional recognition for handling birth injury cases? What are those awards and what organizations bestowed them on you?
Unlike professional sports where the leagues track statistics to identify top players, state and federal courts don’t have facts and figures about lawyers’ wins, losses, or settlements. Instead, bar associations and legal publishers look to the members of the legal profession to identify top lawyers from within their ranks.
Not all awards are alike. Some are less reputable because they lack a peer review process or are tied to “pay to play” advertising schemes. When asking a birth injury attorney if they have received any honors or recognition, ask the factors on which that honor or recognition was based and how the organization arrives at its decisions.
You have every right to question the integrity and reputation of any birth injury attorney you interview, and the attorney should be able to explain the process to you and provide a list of awards.
Do you work alone on birth injury cases or do you collaborate with a team? Who is on that team? What is the experience of each team member?
As capable and talented as the lawyer may be, birth injury cases are complicated. To achieve the best possible outcome, those matters require a coordinated team of legal professionals, led by the attorney.
During pregnancy through labor and delivery, there are OB/GYN doctors and residents, nurses, ultrasound and medical technicians, anesthesiologists and nurse anesthetists, pediatricians and others who provide care to the mother and child. Medical records contain hundreds of pages of notes, test results and interpretations, fetal monitoring strips, and other entries.
Can one attorney competently review all of the law and facts, research the medical issues, assess the defendant’s liability, depose all of the witnesses, and be there for the client throughout the entire case? Maybe, but that may not be the lawyer or law firm you want on your side.
Having a true legal “team” on your side ensures no stone is left unturned and that your case is thoroughly prepared. If you can’t reach your attorney, someone else is there to take your call or respond to your email. In essence, you become part – the most important part – of their team.
But you have to do your homework on each team member, just like the lead attorney. What are each person’s educational background and experience with birth injury cases? Is there a nurse or medical professional on the team? What is his or her clinical experience? Who does what and when as the case moves forward? As the adage goes, there’s no “I” in team, but there is in “win.”
Become an Informed Client
Getting to know your attorney is a necessary first step but understanding the elements of a successful lawsuit and what to expect is also to your advantage. Sommers Schwartz attorney Norman Tucker, the co-author of the two-volume Handling Birth Trauma Cases, has also written The Anatomy of a Michigan Medical Malpractice Case, a helpful primer for prospective plaintiffs. Click here to download your free copy.