A Seven Point Checklist: How to Select the Best Lawyer to Pursue a Medical Malpractice Claim

No matter where one lives, one of life’s greatest challenges is coming to terms with complex health issues or injuries relating to oneself or loved ones. When such health issues or injuries have been caused by the negligence of a trusted medical service provider it can be overwhelming to manage both the health issues and to take prudent steps to ensure appropriate and sufficient compensation is obtained.

The importance of engaging the services of competent proactive legal counsel experienced in dealing with all aspects of medical malpractice matters cannot be overstated.

Making the wrong choice may have serious financial implications and result in sub-optimal outcomes or even in the worst case – losses.

This article sets out to provide victims and their families with a practical checklist of ways to discern whether the lawyers (‘the Candidate Lawyers’) that you may be inclined to consult with have the requisite skills, experience, expertise and temperament to proactively manage your case professionally and cost-effectively.

Typically, most Claimants are relatively unsophisticated consumers of legal services whereas Medical Service Providers (‘MSPs’) – and their liability insurance carriers – are exactly the opposite. Insurance companies – in particular are sophisticated professional litigants who usually have strong relationships with several firms of competent lawyers. Most of the international law firms – and some of the bigger local advocates’ offices – may well be unable to accept instructions from Claimants because of existing commercial relationships with the MSPs and Liability Carriers.

The concise seven-point checklist is set out below.

1. Recommendation – Personal Recommendations are still the best way to start the selection process of Candidate Lawyers.  Many law firms advertise and profess expertise in many specialist areas – including medical malpractice areas – but the true nature and extent of that experience remains to be seen. Claimants should always ask for a Capability Statement or even a CV from Candidate Lawyers setting out the anonymised details of the last 25 or so medical malpractice cases handled and what the eventual outcomes were. A Candidate Lawyer should be able to provide this within an hour or two and talk knowledgeably about the strategy and tactics deployed in each case. If a Candidate Lawyer cannot do this – he/she may not have sufficient experience to handle your case professionally. It may well be that although the law firm had handled medical malpractice cases historically – the relevant individual lawyer may well have moved on to another firm etc. Law firms are only as good as the lawyers who work there.

1. Expertise – If necessary, a Candidate Lawyer should also have proven/demonstrated expertise in drafting formal appeal submissions to the Higher Committee if the Medical Liability Committee decision is not supportive e.g. decides that there was ‘no medical error’ found. The Candidate Lawyer should be able to provide an anonymised specimen appeal submission for your review and comments and talk knowledgeably about appeals submitted and the outcome(s) of the Higher Committee appeals that he/she has prepared.

1. Medical Expert Network – Frequently, independent medical experts are required to review MLC Reports and provide supportive expert reports – if possible – to support appeal submissions. Experienced medical malpractice lawyers should already have a network of medical experts in a wide range of medical specialities. The importance of the input from these independent medical experts in assisting with appeal submissions and indeed in providing expert evidence speaking to future treatments/management of disabilities and therapeutic requirements cannot be over-emphasised. The Candidate Lawyer should be adept and confident with working with medical professionals to obtain, collate and preserve supportive expert evidence particularly to assist in proving quantum i.e. the dirham amount of your claim.

1. Clear Concise Written Advice – A good Candidate Lawyer should provide written – or otherwise recorded- advice to ensure that there are no possible misunderstandings of what the given advice is. For the most part, the findings of the Medical Liability Committees and Higher Medical Committees on liability, causation and disability can be relatively clear. However, the quantum of the Claim is mostly dependent upon the cogency and quality of documentary evidence and a good Candidate Lawyer will base his advice on the documentary evidence available. NB My own research of 75 cases over a 10-year period in the Courts of Dubai, Abu Dhabi and Sharjah indicated that – of those cases – 78% of Claimants recovered 10% or less of the Claim Amount. One can only speculate as to why the ratio is as low as the research indicated but in the majority of those researched cases it was found that the Claimant filed little – if any – cogent and/or compelling evidence speaking to quantum. Any Candidate Lawyer who over-emphasises liability at the expense of quantum is failing – needlessly – to maximise the compensation achievable.

1. Languages – The language employed in UAE law/local Courts is Arabic – of course – but the language of medicine is English and all official medical records, investigations and reports in UAE are recorded in the English Language. Any Candidate Lawyer must have strong English language skills as well as experienced and resourceful local UAE lawyers for Court advocacy. It is often the case that medical records require legal review and/or scrutiny of an English-speaking medical expert.

1. Empathy – One of the most important qualities expected of a candidate lawyer is that of empathy. Many lawyers see the practice of law as dispassionate and unemotional and of course objective analysis and advice should be delivered professionally but a good Candidate Lawyer should always remember that victims of medical malpractice may be going through the most difficult of life’s challenges and empathy, support and sensitivity are required alongside legal and professional skills.

1. References – Any good Candidate Lawyer should be willing to provide contact details of existing Clients who are happy to be approached to discuss the Candidate Lawyer’s key performance criteria and interpersonal skills. Be wary of Candidate Lawyers who baulk at this request.

The commercial arrangements being offered by the Candidate Lawyer may lead to agreed hourly charge rates, capped fees and – in appropriate cases – a ‘no win no fee’ arrangement may be available. A good Candidate Lawyer should offer flexible arrangements that take into account the financial situation of the prospective client and ensure a fair and equitable basis for remuneration.

Stephen Ballantine is Head of Catastrophic and Complex Injury Claims team in our Dubai office and has practised as a solicitor and legal consultant in UAE for 28 years. Stephen and his team of Syrian, Indian and local Emirati lawyers are dedicated to ensuring that victims and their families – suffering catastrophic and complex injuries on the roads, at their workplace, in a public space or in a hospital – have access to the very best advice and legal representation in the UAE.

Stephen Ballantine Senior Counsel, Head of Catastrophic and Complex Injury Claims [email protected]