DAMAGED

by Nicholas Walsh, PA

Every few months I get a call from someone who, due to another’s carelessness, had a very close call and was almost badly hurt. “I could have been killed”, they tell me, and I’m getting the call because they want to sue.

A personal injury action requires that four elements be present: A duty on the part of the defendant (for example, the duty to stop at a red light, or a doctor’s duty to use reasonable care and skill), breach (violation) of that duty, damages from the breach, and causation. Causation is a technical term meaning the law allows the damages to be considered as resulting from a specific breach of duty. If any one of those four elements is missing, no case.

For example, suppose a pedestrian is crossing a street and a driver runs a red light and nearly hits the pedestrian, who is shaken up but uninjured. There are no damages, so there is no case.

Someone might observe that the pedestrian underwent a frightening experience, and ought to receive compensation. True enough, but here’s where the real world enters the picture. If there were no dollar costs associated with getting the compensation, if somehow compensation could be gained by nothing more than filling out an on-line questionnaire, then in theory any claim in which there are actual damages, even very small damages, would result in cash compensation. But in the real world, obtaining compensation involves what economists call “transaction costs.” A personal injury claimant who wishes to be taken seriously must retain a lawyer. The claimant will either pay the lawyer an hourly fee, or, more commonly, will agree to pay the lawyer a percentage of the amount recovered: a fee dependent or “contingent” on the outcome, commonly known as a contingent fee. The fee is typically about a third of the amount recovered, but it’s negotiable.

Whether hourly or contingent, the fee or potential fee has to be large enough to persuade the lawyer that his or her limited time is better spent on that case than doing something else. If the potential fee is too small, a lawyer will not take the case.

All sorts of factors affect a lawyer’s decision whether to take any case, and especially a case on a contingent fee. For example, lawyers far prefer working with a credible, organized, likeable individual than with one who exaggerates, whose life is chaos, and who is generally a pain. A case implicating an important right, say a matter of abusive policing, motivates many lawyers, just as maritime claims are close to my legal heart. But far and away the most important factors for a lawyer considering taking a case “on contingency” are liability and damages.

Liability is simply how clear it is that the defendant had a duty and breached it. If liability doesn’t appear to exist, few lawyers will be interested.

That gets us back to damages. Any personal injury action is expensive, even one which doesn’t get to court. It takes time and money for a lawyer to gather medical records, document damages, hire an investigator and otherwise do what it takes to put together even a simple injury claim. Most experienced lawyers are not much interested in such a case unless the damages appear to equal or exceed $10,000 or $15,000, and that’s for a case where there is no doubt at all that there is liability, where the issue is not whether money will be paid to take care of the claim, but simply how much. If liability is an open question, the potential payoff for the lawyer must increase to compensate for the possibility of no recovery and therefore no fee. That means the damages must be greater.

For a case which requires considerable work, which will certainly have to be sued on, and where there will likely be a defense asserting no liability, many lawyers will want to see damages of at least $75,000 before they’ll sign on.

And then there are medical malpractice cases. No lawyer will consider taking such a case before he or she gets an analysis of the facts from a skilled doctor. That analysis is expensive, and it’s only the beginning of the costs of such work. In Maine, before a “med mal” suit gets to a courtroom there is a mini-trial before a confidential screening panel. The panel is made up of two legal types (often a retired judge and a lawyer), and one medical professional in the relevant field. The injured person (plaintiff) must, among other evidence, present the testimony of a doctor who will testify that the defendant doctor breached the duty of care and injured the plaintiff. Those docs are paid by the hour, and it’s major money - $500 per hour or more is typical. And that’s before the case ever sees a real courtroom and a real jury. Through trial, the out-of-pocket expenses of such cases can run $50,000 or higher, a figure which does not include the countless hours of legal work required to bring such a case to court. The bottom line is that no experienced lawyer will take on a medical malpractice case unless liability is fairly solid and damages are north of $200,000.

As a consequence of this expensive procedure lots of Mainers genuinely injured by medical error are without recourse, and if someone claims the Maine Legislature intended just that result you will find no argument here.

So where does that leave persons who are undoubtedly injured but whose damages will not support the legal work? Out in the cold, too often. Perhaps the individual may be able to persuade a younger lawyer to take the matter, particularly if the client is willing to pay the out-of-pocket costs as they are incurred. When I was just getting started, I took all sorts of injury cases and worked night and day on them. Several times I surprised everyone, including myself, with a great result.

Next month I’ll talk about what sorts of damages are recoverable, and how a personal injury claimant can really shoot himself in the foot.

Stay out of trouble.

Nicholas Walsh is an attorney practicing in Portland. He may be reached at (207) 772-2191, or at nwalsh@gwi.net.