Every student graduating from law school has heard the often cited words of the late Professor Prosser, "For Every Wrong, the Law Provides a Remedy." This new graduate lawyer then begins his or her practice believing the law will provide a remedy for the victim who has been damaged or injured by some type of wrongful act. Many lay people, also believe this axiom. Only reality shows that with the vastness of our nation's laws, many committed wrongs can be and often are, overlooked.
For the individual who sustains some quantum of injury or damage from a wrongful act, many obstacles must be overcome first before Lady Justice has her say. The law imposes strict criteria that must be met before it will recognize the victim's claim and provide some redress or compensation for that wrong.
At the beginning the injured person spends most of their limited energy on getting better. It isn't until much later, when getting better is impossible, that the injured party starts to seek legal help and becomes a client. The integrity and responsibility of the client is of paramount importance when presenting the details.
Finding a competent attorney, in the specific area of law required to handle your situation may be difficult. Finding someone who generates confidence and trust along with seeing the validity of your case is of primary importance. If there are any doubts, you can be sure negative situations will develop. But, before justice can be sought, both attorney and client need to understand the ramifications – both good and bad concerning the potential outcome of the case. Many questions will arise. The attorney should be willing to collect data and answer all objections concerning compensation for the client and the client must know that everything will be done to achieve the best results.
The attorney must be willing to answer as many of the client's questions as possible to alleviate those doubts. The client's confidence in knowing everything is being done to achieve the best results, helps make even a negative judgment easier to handle.
The United States of America's legal system is based on the idea that a person or organization is innocent until proven guilty, placing the burden of proof, not on the wrongdoer but on the one who has been wronged. The client, unfamiliar with the ramifications of the law is unprepared for its requirements, which makes it difficult for the client to understand why their pain and suffering is not enough proof alone. No matter how valid the claim, if the injured party does not have enough satisfactory proof that the "wrongful act" actually caused or resulted in harm, then the case will be dismissed. The burden of proof requires, without the "wrongful act", no harm or damage would have occurred. Just because someone "almost died" from that act is insufficient. Damages must be reasonably certain to exist, or to exist in the future.
One barrier in the fight for justice is Statute of Limitation. A Statute of Limitation is often a harsh barrier to otherwise legitimate claims. It can limit the time allowed to file a claim from as little as 90 days to as much as ten years. In medical malpractice, at the time of my accident, a claim must have been filed within two years of the act of negligence or two years from the time the healthcare provider committed the negligence.
Statute of Limitation is for the common good of the courts. Putting a time limit in which to place a case against someone has proven to be good when it comes to getting results in the court. This way records and eyewitness memories of the event are less likely to be lost. Only, it isn't always good for the injured party, as rehabilitation of the injury may take longer than the time limitation of the statute. No provision is allowed in cases where the plaintiff did not file a case before the Statutes of Limitations has run out.
The success of the client's case rests on presenting the evidence in such a manner so that a positive response is elicited from the jury. The opposition will do everything to present their case as if there is no culpability or responsibility on the defendant's part. Witnesses will be called by both sides. Each will do their best to negate the testimony of the opposition in which to convince the judge and jury of the validity of their own case. The battle of wits and expert witnesses played out in the courtroom makes for a tense and uncertain trial and the winner may not always have right on their side.
What often appears to be a relatively simple case of medical negligence turns out to be a complicated, time-consuming battle. Few points are conceded by the defense. Every test result or finding turns out to be vague and in the gray area. Obvious negligence has convoluted, innocent sounding explanations. The defense will use a pre-existing disease, or "blame" the patient for not getting better, or alleged that the act really didn't make a difference or cause the problem anyway. Such actions - often referred to as the conspiracy of silence - often occur behind the scenes to influence treating doctors and even their own experts.
Unfortunately, in the area of medical malpractice, the law's only remedy is a judgment for money damages. A jury, in most cases, will determine whether you get a verdict, what it will be, as well as the amount of money to be awarded as compensation. Whether justice is done or whether the verdict is adequate, is in the eye of the beholder. I have seen many a client and many a doctor cry bitterly over a verdict. A verdict determines not only who wins or loses but who was right and who was wrong. A verdict is both a vindication and a rebuke. In a defeat, the Attorneys have learned how to accept a rebuke, now it will be the client's turn. It is another burden added to those already caused by the original medical neglect.
Cooperation on the part of the client, concern and responsibility on the part of the attorney, should lead to a satisfactory conclusion, even if the final settlement is not what either had hoped to achieve.
