The answer to this question really depends on the lawyer you ask. Hint: Experience matters.
I’ve encountered many attorneys with little to no experience in medical malpractice law who tried to dabble in these complex cases. Their usual approach is to try to treat the claim like a plain-vanilla car wreck, where there’s minimal investment of time or money in the case before sending a demand letter. When these feeble attempts fail, they throw up their hands and give up.
I can’t think of a better example than this one.
Recently, a client hired Painter Law Firm to handle a Texas medical malpractice wrongful death case. As we started our careful, thorough investigation of the claim, one of the defense attorneys shared with me a demand letter that he had received from an out-of-state lawyer regarding the same case.
Our client had spoken with the out-of-state attorney, but had never hired them. She was infuriated that this lawyer sent out an aggressive, outlandish demand letter less than a month after our client’s loved one passed away. The medical records hadn’t even been released at that point!
Top-rated experienced Texas medical malpractice lawyers know the better way. It involves methodical research, investigation, and development of the case, including:
• Obtaining all relevant medical records
• Getting all billing records for past medical care with a supporting affidavit
• Securing written reports from medical and/or nursing expert witnesses, as required by Texas law for medical malpractice cases
• Deciding whether a life care plan is needed to prove what future care might be necessary
In my experience, most Texas medical malpractice cases settle at mediation well after a lawsuit is filed and typically shortly before trial. By this time, the case is fully worked up and developed, and both sides have had an opportunity to evaluate the merits of the case.
Some of our clients ask if a pre-suit or early settlement is possible. We always answer that it’s sometimes possible, if there’s enough time to complete all of the work-up of the case well in advance of the statute of limitations. To approach a hospital, physician, or insurance company with a half-baked case makes the attorney and client look desperate and unprofessional. Even in the unlikely event of a settlement under the circumstances, it’s likely that the client will be lowballed.
