Last year over 2000 people contacted us about possible medical malpractice cases against the government. We handle Federal Tort Claims Act (FTCA) cases all over the country. Mostly, our cases involve the VA and military facilities, but we also consider claims against the Indian Health Service. Sadly, we can only help a small number of these individuals. What is even more sad, however, is when we run into situations where someone had a potentially good case, but the claim has been impaired or even wiped out altogether. Below are the three most common problems we see:
Waiting Too Long
Any lawsuit or claim of any sort involves time limits. That is certainly true of FTCA cases. Generally, you have two years from the time you “knew or should have known” of a potential claim. That sounds simple enough, but it is not. The analysis can get sticky. Also, because FTCA claims are a mix of state and federal law, some cases involve a so-called “statute of repose.” Effectively, this puts a time limit on a claim that runs from the negligent event regardless of when someone learned a mistake had been made.
Even for experienced lawyers, figuring out the deadlines is often not simple, and it is sometimes quite complicated. We are trained to do this, we do it almost every day, and it is still often difficult. You really cannot expect a lay person to grasp the nuances of figuring out statutes of limitations and statutes of repose. The point is that once you think you might have a claim, you should waste no time consulting a lawyer. There is almost no risk in doing so, but the risk of delay is huge. There is almost never a fix if a claim is filed too late. The client has no chance of getting anything.
At least two or three times per month we look at a case that would have been a good one if it had gotten to us in time. It breaks my heart to turn away these individuals and families, but there is just nothing we can do for them.
Sometimes we are contacted right before the limitations period runs out. Those are tough situations for us because it takes time to evaluate cases and, if appropriate, get a claim filed. To do all of this at the last minute is very stressful and disruptive for us – as I am sure it is for any law firm. Unless something looks super compelling, we frequently turn away such cases. Again, it makes us sad to do so, but to help all our clients (and prospective clients) we must efficiently allocate our resources.
Thinking You Don’t Need a Lawyer
Like most lawyers handling plaintiffs’ cases, our fees are contingent. Even the limited FTCA fees of 20% or 25% can end up being a sizable amount of money. An individual’s motivation to avoid paying such a fee is completely understandable. It is also a total false economy.
The FTCA claims process in general and malpractice cases in particular are not user friendly for non-lawyers. There are lots of traps for the unwary and unknowing. Here is a classic example we see all the time: An FTCA claim must state a “sum certain.” In other words, you must ask for a specific amount of money. Unless you can amend the claim before it is denied by the agency, that is the number you are stuck with. In the last couple of months, we have had to turn away matters where the plaintiff filed a claim on their own, but the number sought was just too low. The case was not economically viable, which is to say that by the time we paid the necessary experts and took our fee the client might not net much, if anything, even if we got a decent settlement or verdict. Had the client sought more we probably could have done something for them.
Sometimes it is not so clear cut as a “sum certain” issue. The other day we had a matter come to us that involved some esoteric medical issues involving a very rare skin cancer. It seemed clear that there might have been a misdiagnosis by a pathologist early in the process. However, the claim focused on the later surgery where there was likely no issue at all. There was really nothing we could do for him. What was especially frustrating about that one, however, was that it was the sort of case that the VA might well have paid something on if we had presented it to them as we typically do. Can I prove that? No, but I strongly suspect I am right.
It is important for all of us to know what we know. But it is more important to have a keen sense of what we don’t know. The decked is totally stacked against a lay person trying to pursue a malpractice case without a skilled lawyer. We see that over and over – and it’s not easy to tell someone that they blew what would have been a viable matter. We must do it regularly, however.
Picking the Wrong Lawyer
Almost as problematic as trying to handle a case on your own is retaining a lawyer who doesn’t understand FTCA and/or medical malpractice cases. All lawyers are not alike. My law license allows me to do a very broad range of things. Legally, I could write a will or close a real estate transaction. That does not mean I am competent to do so – and I can assure you I am not. FTCA malpractice cases are no different. If a lawyer is not familiar with medical cases, does not know the FTCA or is not comfortable in Federal court, he or she should not be handling these cases. Just because someone can handle an automobile accident case in state court does not mean they should try to prosecute a failure to diagnose cancer case in Federal court.
Perhaps not as frequently as missed time limits and botched attempts to handle a case without a lawyer, people do come to us when they finally figure out they have a problem with the lawyer they hired two or three years before. What makes these situations even more tragic is that the lawyer often had enough sense to know it was a decent case but didn’t have the skills or experience to handle it. We have seen clients miss out on potentially good recoveries. We have even referred some to other lawyers to consider a legal malpractice case. The clients are definitely hurt, but often I also feel some sympathy for the lawyers. They are almost certainly not bad people, but to use that old Clint Eastwood line, “a man has to know his limitations.”
You need a lawyer who knows what they are doing and has done it before. If a lawyer is unfamiliar with an area of law, he or she should tell the client. Clients should also ask the simple question of how many cases like this have you handled and how did they turn out.
We want to help people if we can. It is really depressing to review an otherwise good case and see it has a major problem that easily could have been avoided. Those are hard conversations to have with people.