The lawyer you choose is one of the most important factors in the success or failure of your case. It is a decision you should research with care. Unfortunately, choosing a lawyer can be intimidating for people who have never been through the process before. The first thing to consider is that lawyers often concentrate their practices in specific areas of the law. You will want to hire a lawyer who focuses on Personal injury or medical malpractice. Another type of lawyer may be able to help you, but he or she will not have the same experience and skills that a personal injury or medical malpractice lawyer brings to a case. Personal injury and medical malpractice lawyers understand the legal, procedural and evidentiary strategies that can maximize the value of your specific type of injury claim because they work with these issues every day. Be wary of “national” law firms that advertise they will handle your case anywhere in the country. What they actually do is sign you up and then refer your case to a local attorney in order to collect a referral fee when your case is settled.
Here are some of the credentials you should look for when selecting a personal injury or medical malpractice attorney:
You should always ask for a detailed, written resume from a lawyer.
At The Law Offices of Andres & Berger, P.C., we find that most of our clients come to us after a recommendation from someone they know who has used us in the past or from other attorneys who are aware of our expertise. You need a lawyer in the state where the injury happened, even if that is not the state where you live or have legal residency.
All of the investigation and preparation for your case is possible because of the type of fee we charge — a contingency fee — which is established by the New Jersey Supreme Court. Like most reputable personal injury firms, we usually don’t charge a fee at the beginning of the case. Instead, we are paid with a percentage of the money we recover for you if you win the case. In New Jersey, the amount of the contingency fee is set by the State Supreme Court in Rule 1:21-7. The percentage will always be explained to you before you agree to hire us, and a written agreement for legal services will be signed by the client and an attorney on behalf of the law firm. If you lose, we will not ask you for any legal fees at all. It’s that simple. This allows us to represent everyone who comes to us with a strong case, regardless of their income or background. In contingent fee cases, we pay the costs and expenses involved in preparing the case. If we are able to obtain a recovery for you, we give you an itemization of the expenses paid on your behalf and reimburse the firm for those expenses at the conclusion of the case. In New Jersey, you also have the option of paying your attorney an hourly fee if agreed to by all. If you choose to pay based on hourly fees, your lawyer will likely require a retainer and will charge you for his or her time and expenses, regardless of whether you win or lose your case.
We believe the option of a contingency is an essential and valuable part of our legal system, providing access to justice for everyone, no matter what his or her income or background might be. It levels the “playing field” by allowing injured people and the families of loved ones to hire experienced, well-qualified attorneys to fight against the insurance companies and big business.
When you find the right lawyer who is qualified to handle your specific type of case, you will sign a contract to provide legal services formally retaining him or her as your lawyer, giving you all of the rights of a client. To get the case started, your lawyer may direct personnel within the law firm to obtain your medical records, doctors’ notes and medical test results, along with a copy of any accident or incident report and any insurance information or statements the insurer might have recorded. If necessary, the lawyer might also retain a private investigator to find important but elusive information about your case. All of this case development takes time. At our firm, we have found that clients really appreciate being kept informed, whether or not we have anything significant to report. For that reason, we assign specific staffers to update clients regularly about the status of their cases. At your discretion, we will provide copies of all correspondence and documentation or provide you with those items which are of significance. In this first stage, we are working to understand the facts and the strength of your case. After the case is documented and prepared, your lawyer can begin negotiating with the other side to get you the best possible compensation under the laws of your state and the facts of your individual case. You may end up settling the case outside of court or participating in mediation, arbitration or a full trial. One of our lawyers will explain the procedure to you at your consultation.
When you first call The Law Offices of Andres & Berger, P.C., your call may be taken by a lawyer, a paralegal, a case manager, nurse or an intake specialist. This person will ask you for basic contact information as well as for the details of your accident. Based on your answers, a lawyer will make an initial assessment of your case and may schedule a consultation. If you cannot travel to the law firm, one of our lawyers will consult with you on the telephone, in your home or at the hospital. At The Law Offices of Andres & Berger, P.C., we make every effort to accommodate clients and potential clients with this type of need.
During the initial consultation, you will be asked for details about your accident and your injuries. Because details can be hard to remember and because some clients feel intimidated or stressed by this meeting, we recommend that clients bring all the documents they have that are related to the accident or to medical negligence — things such as incident or police reports, pictures of the accident scene and the involved vehicles or products, hospital bills, your insurance policy, and more. We always do our best to put clients at ease and explain everything as thoroughly as possible, without “legalese.”
Medical malpractice occurs when a physician fails to provide appropriate healthcare according to established medical standards and, as a result of that failure, causes injury to the patient that otherwise would not have occurred. A physician can make a medical mistake by doing something that should not be done, or by failing to do something that should be done.
The determination of medical malpractice requires a thorough evaluation of all the medical records by physicians, nurses or other healthcare providers of similar background and training as the doctors whose treatment is being reviewed. The experts must determine that the doctors and other providers failed to provide care according to accepted standards of medicine or surgery. Medical expert testimony is required to both prove errors on the part of the physician and the additional injuries caused by the error that would not have occurred had care been provided appropriately.
In order for you to know if you have a medical malpractice claim, you need to have the assistance of an experienced medical malpractice law firm to evaluate both the legal and medical aspects of your potential claim. The attorney must determine whether the injury, or the discovery of the injury, is sufficiently recent in time that it is not barred by the Statute of Limitations defense. Next, the attorney must obtain all relevant medical records, organize them and analyze them to see if the medical facts support the claim. If the medical facts appear to support the claim, the attorney must select knowledgeable and articulate experts, who are willing to review the potential case, give an honest opinion on the physician’s conduct and are willing to testify at Trial in support of your claim. Only after your attorney has obtained the necessary expert testimony to support claims of medical negligence and the relationship of that negligence to your injuries, do you know that you have a case.
The period time within which an injured patient can bring a medical malpractice lawsuit is called the Statute of Limitations. The Statute of Limitations for bringing a medical malpractice lawsuit and the special rules that apply vary from state to state and the type of defendant.
All medical treatment must be provided with the patient’s informed consent, except in extraordinary emergency situations. Patients sign a general consent form for treatment upon admission to a hospital and a specific consent form prior to having an invasive procedure or operation performed upon them. The specific consent form for a procedure or operation must be signed by the patient indicating that the doctor has explained the nature of the patient’s problem, the suggested treatment as well as alternative treatments, the risks attendant to those various treatments and that the patient has had an opportunity to ask questions before consenting to the recommended treatment. Signing a consent form does not waive a patient’s right to bring a medical malpractice claim if the doctor fails to provide medical care in accordance with accepted medical practice.
Lack of Informed Consent occurs when the patient develops an injury during a medical procedure or operation that is a risk recognized by the medical community but undisclosed to the patient of the procedure and, had the patient been advised of that risk beforehand, the patient would have not consented to the treatment that was performed but would have chosen one of the alternatives. In most states, the determination as to whether a patient would have chosen the alternative treatment if the undisclosed risk was known is determined by the jury based on what the jury feels a reasonable patient would have done if the withheld information had been given to the patient.
Yes. This is called a Wrongful Death action. Wrongful Death actions are often brought in connection with medical malpractice claims, when the patient dies as a result of the medical negligence.
An experienced medical malpractice law firm first takes a detailed history from the client to learn all of the medical treatment the individual has received, so that the necessary medical records can be obtained. Next, assuming that the medical malpractice attorney believes that there is a case to pursue, all of the relevant medical records must be obtained from the providers. After obtaining the records, the records are organized according to provider and are analyzed by the attorney or by an experienced Legal Nurse Consultant and/or physician working with that attorney. Based on a medical review of the records, the attorney must make a determination as to what expert medical witnesses are needed to prove plaintiff’s case. Once that is determined, the records are forwarded to those medical expert witnesses, who charge a fee for review of the records. Upon receipt of a positive opinion from a medical expert witness that the defendant or defendants deviated from accepted standards of care and thereby were medically negligent AND the receipt of a medical expert witness’s testimony that the medical negligence caused injury which otherwise would not have occurred, then the attorney knows that there is a viable medical malpractice claim.
It is precisely because a medical malpractice law firm regularly works with medical experts in highly specialized areas of medicine, that a medical malpractice law firm can understand, organize and present complex medical facts to a judge and jury. A medical malpractice law firm has many contacts with expert witnesses, often in specialized areas of medicine, and is able to bring vast resources together for the benefit of the client.
If your case is a medical malpractice case, you should bring with you any and all medical records that you have as well, as a list of all physicians and hospitals that you have visited over the course of last ten years. You should also bring any x-rays or other imaging films in your possession, as well as any photographs that you may have which would be evidence of your injuries. If your matter is an automobile negligence case, you should also bring a copy of your automobile insurance policy and declaration form. The declaration form is the page of your automobile insurance policy that provides the limits of your coverage. In addition, you should bring a copy of the police report from your accident and any photographs of the vehicles involved. If your case involves a product-related injury, please bring all of your medical records, photographs related to your injuries, any documents related to the investigation of your injury and any available photographs of the product as well as any product information you may have at your disposal.
Experienced medical malpractice and personal injury attorneys identify their experts through a number of different sources. These experts include accomplished certified experts in medicine and science that can address cases involving claims of medical malpractice negligence, automobile accidents, slip and fall, defective products and other injuries resulting from someone’s negligence. Economic and vocational experts may be used to help determine how your injury has affected your life financially. Experienced medical malpractice and personal injury attorneys know numerous and very qualified experts who can provide an unbiased review and analysis for a variety of different claims.
You can obtain information about your doctor from the State Board of Medical Examiners or your state’s equivalent certifying agency. Other sources of information about your doctor may be available on the Internet. You can also frequently obtain information from the medical society of your state and the hospital where your doctor practices. One website that provides hospital and physician ratings is www.healthgrades.com.
Unfortunately, unless your doctor has been the subject of discipline by your state’s licensing board, it is often not possible to determine the nature or the number of medical malpractice claims he or she has had, except in the midst of a lawsuit. Some states, such as Massachusetts, have created an on-line database, accessible to the public, with medical malpractice information. Others have not done so yet. . For a list of addresses and phone numbers of State Medical and Dental Boards from whom you obtain information about disciplinary actions taken against doctors in your state, please see National Practitioner Data Bank List of State Medical and Dental Boards.
Experienced medical malpractice attorneys usually work together with in-house medical personnel and independent medical reviewers, so as to screen-out those cases that are not likely to result in proofs of a departure from standard medical practice. If an experienced malpractice attorney is prepared to undertake your representation, it is generally a case that the attorney believes is worth your time and effort. The cost of bringing a medical malpractice case requires that resources be spent on medical malpractice cases with a likelihood of success and significant amount financial recovery.
Some states have caps on damages that a plaintiff can receive for pain and suffering; thankfully, many states do not. To this end, attorneys who represent injured patients remain vigilant in protecting their right to recover for medical negligence from unwarranted economic limitations.
While a number of the cases handled by experienced malpractice attorneys result in a settlement, medical malpractice actions are much less frequently the subject of settlements than other types of personal injury cases. One of the main reasons for the lower settlement rate for medical malpractice claims in many states is that the defendant-physician must agree and consent to any settlement.
Unfortunately, sometimes lawyers must turn down cases. In order for a lawyer to accept a case, he or she must consider many factors, including the severity of your injuries, which parties were at fault, conflicts of interests, legal limitations, time constraints and more. If the firm decides that it cannot handle this case for you, that may not necessarily mean that you do not have a case — just that the firm is not in a position to accept your case.
At The Law Offices of Andres & Berger, P.C., we don’t like to turn down cases. When we have to tell clients that we cannot take their cases, we do our best to refer them to a local bar association or another lawyer who is better suited to help.
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