Law Tips: Mistakes Lawyers Make in Medical Malpractice Cases – Lack of caution and planning

Understanding of complex issues, keen awareness to detail, constant caution…just a few of the skills  that are helpful in avoiding potential pitfalls of medical malpractice cases.  Meeting these challenges is a subject addressed by two of ICLEF’s faculty, John Boren, Boren Oliver & Coffey, Martinsville, Indiana, and Linda Chezem, Mooresville, who is a Professor and Adjunct Professor with Purdue University and Indiana University School of Medicine. During their presentation for the seminar entitled  Mistakes Attorneys Often Make With Medical Malpractice Cases these experts focus in on specific avoidable issues that often cripple a lawyer’s case. I thank them for allowing me to share excerpts with Law Tips readers. They asked that I give due credit as a reference for their materials to Marian Langley JD who wrote on this topic recently at See the link to this source at the end of this post.

Linda and John have a preliminary warning for fellow lawyers:
“An attorney who is litigating a medical malpractice has to be efficient with time and money in managing the case and especially in the litigation portion. The technical and complex issues are daunting and the expert who can evaluate the case may not be the best one to explain it at trial. Yet woe betides the attorney who does not adequately explain the standard of care, show causation, and prove/justify the amount requested as damages.” 

Two of the mistakes that our faculty participants emphasize for your attention are:

Not looking before you leap.

Medical negligence cases are rarely caused by simple mistakes. The questions of who should have done what, a complex medical condition, unclear standards of care, (what is the standard of care when there is no money to pay for it?) and unproven causation challenge both the plaintiff and defendant. For a plaintiff’s lawyer, the acceptance of the wrong case can mean that he or she is doing a lot of work for little return. Yes, value learning in the workplace, but you can get CLE from ICLEF cheaper than through the experience of taking a bad case.

Not having a plan – A real plan to conduct discovery and examine witnesses and parties.

But how often do the lawyers engage in strategic planning with the expert to get the most out of the discovery process? The planning expert does not have to be the testifying expert. A non-testifying expert can be a more dispassionate assistant than one who will be defending his or her opinion on the stand. With their reports and analyses typically protected by work-product rules, non-testifying experts are free to assist in all aspects of case preparation. They provide insight that complements the work of the testifying expert and they can be an excellent source of probing and pivotal questions for use in deposition and trial.

Thanks again to Linda Chezem and John Boren for illustrating the dangers that could jeopardize medical malpractice cases. Be sure to check in here at Law Tips next week for tips from our Medical Malpractice experts on avoiding the wrong experts when evaluating your case. Meanwhile, you have the opportunity to take advantage of the excellent CLE presentation on Mistakes Attorneys Often Make With Medical Malpractice Cases through ICLEF’s On Demand CLE programming.

Resource: Marian Langley JD, reference article: Seven Mistakes Attorneys Often Make With Medical Malpractice Cases


About our Law Tips faculty participant:
John D. Boren opened his law practice in Martinsville, Indiana, in 1979 and joined with Steve Oliver to form the partnership of Boren and Oliver in 1981. Together they have  pursued numerous cases for injured clients with successful representation against the largest corporations in the world. John has also successfully defended numerous clients charged criminally, including the defense of a twelve year old boy charged with murder. His areas of practice include personal injury, medical malpractice, major criminal defense and DUI.

Hon. Linda L. Chezem is a Professor and Adjunct Professor with Purdue University and Indiana University School of Medicine as well as a former Indiana Appellate Court Judge. She resides in Mooresville. Judge Chezem’s expertise reaches into several areas. For instance, due to her extensive background in underage drinking laws, she teaches law students, graduate students and lawyers about ethical and legal issues in alcohol research. She also focuses on animal use and production law and, on the human side, informed consent and certificates of confidentiality.

About our Law Tips blogger:
Nancy HurleyLaw Tips blogger, has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page. Also, you are encouraged to comment below or email Nancy.  She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you onLaw Tips.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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