Ask a Medical Malpractice (Defense) Lawyer

[TheRealJoeFish]

Joe: Is there a defense you undertook that you wish you hadn't? Is there a defense you declined that you wish you hadn't?

Boru

To be honest, I don't really have a personal answer for this, just because I haven't been doing it long enough. In general, a case usually lasts, from filing to trial, 2 to 4 years, with filing usually occurring 1 to 2 years after the injury; I've only been doing this for about four months now. More to the point, I guess, is that I probably won't be making "strategy-level" decisions for a few years. Right now, my job is a lot of summarizing records and interviewing people and doing the grunt work; it's my boss's boss's job to go to trial.

On a general level, there are a number of things that come up that are uncomfortable. The big one, I think, is contributory negligence - when you have to say "part of this is the patient's (or someone related to the patient's) fault." I mean, one can easily imagine a case where you have to argue, before a jury, "the plaintiff should've taken his son to the hospital on Thursday; by the time he got him there on Friday, it was too late to save him, and that's not our fault." Not a fun position to take, to tell a grieving parent, but a position I may have to take some day to protect my clients' interests. There are others that come up; I'll post them if I think about them.

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So, TL;DR: I'm an associate (as opposed to a partner) so I don't get to decide what I do. If someone asked me to do something I found odious, I'd say no. If someone asked me to do something distasteful but necessary, well, that's part of my job, I suppose.