Business and Administrative Steps to take before Trial
Setting up your medical malpractice case is almost as important as executing within it. You must take certain administrative and legal steps so that your client can recover and you can get paid. Below is a series of tasks you must fulfill and documents you must gather to accomplish this as well as insurance and filing information.
Step 1: Hold A Client Intake Meeting.
At the onset of every medical malpractice case, you should meet with your potential client. This intake meeting should help you get a sense of where the client comes from and how the medical malpractice affected his or her life. Also, asking specific questions about the medical care provided to him or her should give you an understanding of the kind of negligence involved as well as the nature and scope of potential damages to the client. This will in turn also reflect a sense of attorney’s fees that will be available to you. Finally, what will hopefully, and most importantly, come out of the client intake meeting is a sense of trust in you from the client. This trust should propel them to sign the contingency agreement, which will be discussed later. For sample questions to be used in a client intake meeting, see our form below but feel free to customize to the client’s particular circumstances:
Step 2: Obtain a Signed Contingency Fee Agreement
Your work will go unrewarded if you do not obtained written consent from your client regarding your ability to represent him or her as well as collect fees from him or her. Be aware, the Illinois legislature recently enacted a law that capped all contingency fees an attorney can collect in medical malpractice cases at one-third of the total settlement or award. Most plaintiff’s attorneys in medical malpractice cases use contingency rather than hourly billings because this allows cash-strapped victims to receive legal representation and pay only if the lawyer is able to obtain an award or settlement. The fees a plaintiff’s lawyer obtains normally cover expenses reasonably related to the case including expert witnesses, photocopying, legal research, investigation, the attorney’s actual work and appearances, etc. For more on what an attorney can charge a client through a contingency fee see Illinois Rules of Professional Conduct §1.5 and for more on the requirements of a contingency agreement see the Illinois Supreme Court case Dowling v. Chicago Options Assoc., Inc., 875 N.E.2d 1012 (Ill. 2007). Here is a sample contingency agreement for Illinois medical malpractice cases:
Step 3: Obtain a Signed HIPAA Form
The devil is in the details for medical malpractice cases. Here, the details are nearly always in medical records related to a doctor’s care, surgeon’s performance, medications prescribed, or devices used. However, before lawyers can obtain the medical records of clients, they first must obtain permission from them to gather their personal, medical records from healthcare providers. The requirements for this permission was mandated from the Health Insurance Portability and Accountability Act and includes such things as the client’s signature, identification of the party granted access, and description of records sought. Below, we have a sample HIPAA form to be used in Illinois medical malpractice cases but remember to attach a signed copy of the client’s contingency agreement with the executed HIPAA form to verify your legal representative capacity:
Step 4: Draft and Send a Lost Wages Form
One critical element to damages in medical malpractice cases is the loss of income attributable to missed work or lost investments. If you can prove these stemmed from the negligence of healthcare providers, then that will greatly increase the size of recovery available to your client. To establish this, you should quickly and clearly draft a lost wages from and send it to the client’s employer(s) verifying the amount that the client could have obtained but for the provider’s negligence. This can take time and lots of cooperation. Therefore, it is best to start this soon in the case process. Here is a sample lost wages form to be used for Illinois medical malpractice cases.
Step 5: Draft and Send a Lost Wages Form
Early in the process of your medical malpractice case, it is important to put certain parties on notice that you are the attorney representing the client in the incident at focus. For medical malpractices cases, these parties normally include the opposing party’s legal counsel, the relevant healthcare providers, and any involved insurance companies. Notice is key for two reasons. First, it directs them to talk to you about all matters concerning the case and not your client. Second, it will begin the process of obtaining any necessary records that you need from them by identifying your representative capacity. Here is a sample letter of representation for medical malpractice cases. Feel free to embellish to advance these two points and attach a signed copy of the contingency agreement if necessary.
Step 6: Draft and Begin Assembling a Records Collection List
The arsenal at your disposal in medical malpractice cases are records and documentation. As such, it is vital to get organized about all the information and items that you need from medical records to consent forms and everything in between. Creating an index collection list can speed this process up so that you can quickly begin compiling all necessary data. Also, it will help you organize your case so that when you begin crafting your argument for negligence and damages you will be able to cogently structure your supporting evidence. Here is a sample records collection list to be drafted and followed from the get-go in medical malpractice cases but feel free to add anything that might be relevant for your particular case circumstances:
KNOW YOUR INSURANCE COMPANY
Before any lawsuit or settlement, it is important to understand the insurance company implicated in the incident. This company might be the one that you seek reimbursement from after seeking a judgment from the party at fault because that party was insured or has no money to offer. Click on the links below to learn about some of the biggest insurance companies and litigation against them:
- State Farm
- Countrywide Financial
- Liberty Mutual
HOW TO FILE A LAWSUIT
In Cook County, you have to fill out and file a Complaint and Summons form. These documents can be downloaded at their website (http://www.cookcountyclerkofcourt.org/) or picked up at their office at Room 601 in the Richard J. Daley Center, 50 West Washington Street, Chicago, Illinois, 60602. You must also serve the defendant either through the Sheriff’s Office or through certified mail (if the claim is below $10,000). After filing these documents, the county will give you a return date for when you are supposed to come back for your trial. For more information and for all relevant forms needed to file a lawsuit, please visit the Cook County website. Also, to see the costs of a filing you lawsuit, visit this page: http://22.214.171.124/Forms/pdf_files/CCG0603.pdf
The process to start a lawsuit is quite similar in other counties, to find the necessary information see below:
- Office of the Circuit Court Clerk
- 505 County Farm Road
- P.O. Box 707
- Wheaton, Illinois 60187-0707
- Keith Brin, Clerk of the Circuit Court
- 18 N. County St.
- Waukegan, IL 60085
- Will County Court House
- The Office of the Circuit Clerk
- 14 W. Jefferson Street
- Joliet, IL 60432
- (815) 727-8592
- Clerk of the Circuit Court
- 540 S. Randall Rd.
- St. Charles, IL 60174
- McHenry County Government Center
- 2200 North Seminary Ave.
- Woodstock IL 60098
- (815) 334-4000
- Clerk of the Court
- 157 North Main Street,
- Edwardsville, IL. 62025