Rejected by lawyer

[katep]

Cindy,

Please look into filing a complaint with the medical licensing board in your state. The board investigates the complaint (doesn't cost you anything), and if it's upheld the doctor is disciplined, and they may even lose their license to practice. You don't get money out of it, but you may get the satisfaction of doing something to stop these doctors from hurting other children.

Civil suits are about recovering damages, and if there aren't a lot of damages (or there isn't malpractice insurance in place) then most lawyers reasonably don't want to risk the $$ to pursue the case. You can look into paying someone directly, but I think if an experienced lawyer doesn't think the case is worth the investment, I would tend to believe them.

A complaint with the licensing board is different - it's strictly about whether or not the doctor performed their duties properly and according to the established standard. If it wasn't a severe injury, it's probably still difficult to get a really strong negligence ruling (but that would depend on what other evidence you have). However, if enough complaints are filed against a particular practitioner, the board takes notice. It might just mean that future or past complaints are taken more seriously. But it doesn't cost anything to file a complaint, so no matter what, I believe it is worth it.

Kate

[katep]

Here's the Alabama State Board site for complaints. You can also follow the link to check out if the doctors already have actions against them.

http://www.albme.org/complaints.htm

Kate

[cindyh]

Thanks Kate for the info. That may be the avenue that I need to take.

She had 3 avulsions, so I do consider it severe. Why is it thay when the lawyers reject you, they don't automatically send back your records that you supplied them with? Why do we have to request them back? I don't understand.

[dmom]

Cindy:

There are a lot of bad lawyers out there (kind of like doctors!), who don't handle potential clients very well. There are a lot of greedy lawyers out there, who might reject cases because they won't get enough cash out of it. And there are a lot of ignorant lawyers, too, who don't know a thing about BPI. You have to take all of this into consideration as you choose a lawyer!

If your baby had three avulsions, KEEP SEARCHING.

I cannot imagine that you can't find a lawyer if your baby is that severely injured. What I would do if I were you is find a lawyer in a big city in your state who has a good record of med-mal cases and who, preferably, knows at least something about BPI.

Perseverance is key. It sounds from your post like you still have some fight in you. Fight until you've exhausted your options. I just know too many people whose perseverance in finding a good lawyer paid off because they wouldn't take no for an answer.

Please let us know how it turns out - and good luck!

Janet

[dmom]

P.S. You're also better off finding a lawyer who's in a medium- to large-sized firm. Sole practitioners do not have the capital muscle that firms do to try these kinds of cases.

[TNT1999]

Our case was turned down by three known and reputable med. malpractice attnys. Then, we found two who would take our case and we actually had to choose. Our daughter had 2 avulsions, a huge tear, and neuromas, and stretches; total BPI -- all 5 nerves injured. After a two-week trial, we lost our case. I am not sorry though that I still pursued it until we found a reputable and experienced firm to take our case. I think one of the problems in the end was them switching attorneys on us to one who didn't have as much BPI experience as the original lawyer we had. If your daughter had 3 avulsions, I would pursue it further. The injury itself speaks for negligence. In the future, what you might do though is make one or two copies of the records so you can send out the copy and keep your original. This way you can have more than one set out at once if necessary. BTW, it seemed that why our case was turned down is b/c the dr's notes looked good. I think he did honestly perform all the proper maneuvers, but just used excessive force! Of course, "excessive traction" was not in the records. :O)

Do what you feel is right for your family. That was a good suggestion about filing a complaint at a minimum though.

This link will give you some great legal info. written by a Mom of a child w/a BPI. There's also a list of questions you might want to ask any prospective attorneys.

http://www.injurednewborn.com/maia/legal.html

~Tina, bpmom@comcast.net

[cindyh]

Thanks everybody for your responses and email. I value them all. I'll let you know later which direction we take.

Cindy

[admin]

The following is not directed to any person or parent...

In accepting your law suit, the lawyer will take it on a contingency basis, eg, he get one-third of the award, and then all of his expenses incurred on your behalf. Aside from other factors that may motivate your lawyer, he is motivated by the sum of the award -- and not just as a matter of greed, your lawyer may want to establish some legal precedence or legal competence in your case. Thus I offer this.

Two very critical aspects of the law suit that is rarely discussed here is the educational and earning history of the parents. In my State the majority of any mal-practice or negligence award is the expected economic loss of the child due to his injury. I have found that if the parents have not completed college and have a low to moderate earning history, then based on economists projections your child, in an expectation that he will follow his parents traditions, is not expected based on other averages to experience a substantial economic loss. Thus the award in a suit would be relatively low, and your lawyer would hesitate to take on that suit.

[PeggyF]

The opposing side can also state, and did, that since the child comes from a highly educated family, the child will be highly educated and end up in a good paying job and not need an award for compensation.

[admin]

I am writing in response to legal anon's note. Actually it is the opposite. Whether right or wrong, it is asumed that less educated parents have jobs that require more manual labor, such as working construction, and that educated parents have jobs that require more intellect, such as teacher. Therefore often the impact upon the potential working history is worse for children of "less educated" parents. For example, it is often assumed that the child of two lawyers may grow up to be a lawyer, and that a brachial plexus injury would have less effect on that persons work than it would if both parents were manual laborers. This is a very complex area of analysis and is just not as simple as legal anon makes it out to be.

The bottom line is a good case is a good case. If a child is injured due to medical negligence that is enough to proceed with a case. The other factors are important, but will not make or break a lawyers decision to take the case .

Ken Levine
Klevine@Klevinelaw.com
617-566-2700