Why filing your Louisiana Medical Malpractice Claim is not like Selling Your Home

How many times have you thought to yourself why am I paying a lawyer all that money?

It kind of reminds me of how I think about real estate agents.  Maybe you think like this too…

I mean…I’m usually home anyway when she does a showing (because I don’t like strangers in my house without me there). 

I have to tidy up and put on a smile.  I shake a few hands and I still do most of the talking.

The interweb tells me how much my house is worth and I can read a million blog posts on negotiation tactics.

On top of all that, my agent still has to call me for anything important and I make all the decisions on price.  So what gives?

I feel like my agent is robbing me of 6% because I am doing all the work!

Many of us think that we can do a lot of things on our own (men especially have this problem).  And, with enough time and dedication that is true.  We are built to learn, adapt and apply skills to problems. 

But how much time is that going to take you?  You have a job, a family and you want free time. 

Oh yeah, and you just got hurt by a negligent doctor, so you are pissed and in pain and don’t want to spend money on a lawyer because you’ve sold your house on your own before.  You figure it can’t be rocket science, after all, the law allows me to file a claim and a lawsuit on my own.  

If we all lived in the Matrix we could just download information and apply it instantly to any problem, and get it right the first time. 

But, if you are anything like me, it takes a little while before you can become competent in most things.  Most of the time you are spending learning by making tons of mistakes and applying your lessons learned for the next time.  Except, when it comes to medical malpractice cases, you hopefully don’t have a next time.  So can you really afford to make mistakes?  

Sometimes, you can get away with it (like the following couple did)…but I don’t recommend it.

A few years ago a couple filed a medical malpractice claim with the Patient’s Compensation Fund in Louisiana, against West Bank Surgery Center and Dr. Mark Juneau, that ended up in Louisiana’s highest court.  (Darrin Coulon v. Endurance Risk Partners, et al.)

They did this without the help of an attorney (I presume they had used an agent once in their life). 

They alleged medical negligence against this facility and its employees but did not specify negligence against a particular health care provider as outlined by the Medical Malpractice Act and tried to bring in that provider when suit was eventually filed (click the link below for how medical review panels and filing suit work).

Or so the defendants had thought….

You see, after the panel convened and ruled, as permitted by law, the plaintiffs then filed a lawsuit against these defendants, but alleged new providers had injured them. 

When they filed the lawsuit the defendants were able to get it dismissed based on an exception of prematurity.  Basically, a lawsuit cannot be brought against parties unless they are first brought to a medical review panel.  

And the defendants won! Well, almost…

The couple appealed that decision to the next court and lost.  But then appealed again to the supreme court of Louisiana, and they WON!  (But, it took years)

At issue was the language they had used to characterize the new providers alleged by the defense.  These providers were actually nurse employees of the surgery center who had not been named by name.

The Court determined that the language the couple had used in its brief to the panel was broad enough to include the nurses , and, thus, they were adjudged as named health care providers by the panel.

You see, this apparently minor procedural error (that could have easily been avoided), but YUGE mistake (in the words of Trump) could have made them lose.  They would not have been able to bring the claim if the supreme court had affirmed the lower courts’ decisions.

After all that time (five years in fact)… the case was then sent back down to the district level court to actually try the merits of the case before a jury.

I know what you are saying to yourself… Are you kidding me?

After all that time spent in the courts.  After all that painstaking work and waiting for decisions from subsequent courts. 

After all the sleepless nights and banging yourselves over the head for possibly losing on a minor procedural issue, they then have the opportunity to actually try the case to see if a jury believes that medical negligence occurred? 

And, oh wait…they are very likely to lose again because of the complexity of trying medical malpractice cases before a jury!

So why did this happen? How could they have shaved years off of the case?

Because they wanted to be their own agents. 

This couple thought they were Neo, thought they could easily download information, forgo the Agent (the Matrix puns continue) and sell their house. 

What they built and tried to sell was a House of Cards (this is getting entertaining)…and they got lucky!

So the big takeaway is this…

Medical malpractice law is Uber-complicated and not as simple as sticking a For Sale By Owner sign in the yard, crossing your fingers and waiting for the phone to ring. 

While it is fairly simple to sell your house.  It is extremely complex to handle a medical malpractice claim. 

In fact, most lawyers who practice in personal injury law can’t do it (they send me their cases) because it is too hard.  Too easy to mess up. 

So, when deciding on pursuing a claim don’t be your own agent – just like you wouldn’t be your own surgeon.

Find a medical malpractice lawyer who knows their stuff and will guide you through the crevasses before you fall. 

Because these claims can fail at any moment, you want a skilled guide to walk you through safely and give you the best advice possible for conquering your claim.  It is the only shot you are going to get and there is no room for error.  

Now, go sell your home!