Medical malpractice suits often resemble David vs Goliath type situations, with inexperienced plaintiffs seeking remedy against large medical systems and their expert malpractice insurers. What compounds this problem is that plaintiffs have little basis to assess potential counsel and instead resort to choosing counsel on factors that should be given much less weight, like geographic proximity and recommendations from non-expert personal networks.

… roughly two-thirds of attorneys with any medical malpractice experience will not have tried a medical malpractice case in the last 5 years.

Consider the seemingly sensible heuristic of searching for attorneys who you (or even your network) know have some experience trying a medical malpractice case for a plaintiff. Looking at the data, it turns out that roughly two-thirds of attorneys with any medical malpractice experience will not have tried a medical malpractice case in the last 5 years. You’re not much closer to finding an expert malpractice attorney than if you had chosen randomly. The other side of the problem is that attorneys are business minded as well as “counsel”, potentially with incentives to accept cases where other better choices of counsel exist. Both of these issues lead to a situation where 30% of medical malpractice proceedings are tried with an attorney without any medical malpractice experience within the last 5 years.

… 30% of medical malpractice proceedings are tried with an attorney without any medical malpractice experience within the last 5 years.

Figure 2: Two thirds of attorneys with medical malpractice experience haven’t tried a case within 5 years

So how does one find a suitably experienced attorney?

From our experience, people largely rely on one of two methods, Google or personal references. Using Google for a broad attorney search such as “personal injury attorney los angeles” uncovers attorneys who won the bidding and SEO war for a lucrative keyword. (Attorneys pay upwards of $72 per click for each ad placed against that keyword. SEO stands for search engine optimization and is the practice of engineering a website to have the right combination of text so that it appears at the top of a search engine’s results pages.) There is no guarantee of any overlap between this group and the relevant set of attorneys for your circumstances.

Google searches direct you towards attorneys willing to pay money to advertise their services, and do not correlate to the attorney’s ability to handle a patient’s claim.

Targeted search terms (such as “orthopaedic surgery medical malpractice attorney”) are even worse, returning a combination of the same results from a broad search along with a smattering on generic advice regarding medical malpractice.

References from one’s social networks return detailed information on attorneys, but suffers from the small sample problem. Learning from a single interaction is in general useless but even more so in litigation where facts and circumstances can vary widely between cases. To assess an attorney, one needs to observe a large sample of cases that attorney has been involved with so that valid inferences can be made. Even better is being able to make apples to apples comparisons with alternative attorneys.

An addition problem is that people underestimate the specialized nature of medical malpractice. This is particularly troublesome since personal injury attorneys, whose business relies heavily on soliciting plaintiffs, represent the largest group of attorneys and it is easy to conflate personal injury expertise with medical malpractice expertise. Figure 3 shows that 43 per cent of attorneys with medical malpractice experience are better described as generalists, rather than medical malpractice experts. This is concerning since medical malpractice is a highly specialized area of law where having experience and being able to understanding highly technical medical opinions and properly source credible and reliable experts can be the difference between a successful outcome or additional loss.

Figure 3: There are many more personal injury/tort attorneys than there are medical malpractice experts.

A much better solution is to rely on data, if it’s available. A dataset such as that available on the Litimetrics litigation analytics platform is objective, which eliminates the implicit filtering by highest bidder/SEO that occurs with Google, is comprehensive across the jurisdictions it covers, overcoming the small sample problem, and is detailed, offering insights about cases involving certain types of medical professionals. A claimant has access to the bulk of an attorney’s proceedings and can directly and easily assess an attorney’s true expertise and performance. Unlike personal references, other relevant attorneys can also be found so that apples-to-apples comparisons can be made. For example, compare the results of a search for ‘personal injury attorneys los angeles’ on Litimetrics with the Google search results from before.

Using a data-driven platform like Litimetrics ensures that the attorneys you assess actually have recent and relevant experience to your claim.

Outside of Litimetrics, data about the performance and experience of attorneys may be difficult to find for patients. If data isn’t readily available, then the next best thing to do would be to verify the experience of the attorney. Patients should ask how many proceedings the attorney’s tried recently, and in particular, how many medical malpractice claims and claims involving the same type of a medical professional.

Because plaintiffs in medical malpractice suits are almost always inexperienced, they choose attorneys in convenient yet demonstrably suboptimal ways. To level the playing field, we suggest that plaintiffs make data-driven decisions when selecting legal representation, or at the least, attempt to verify for themselves the experience and performance of potential attorneys. Relying on data can sidestep many of the existing problems that plaintiffs make in choosing legal representation, giving them a greater chance of obtaining a satisfactory outcome.