Attorney didn't order all medical records, case botched

What is the name of your state? Ga

I hired a lawyer for a personal injury case that stemmed from a car accident 4 years ago. My atty was a partner in the firm. I had 3 surgeries and updated my attorney religiously. I have 37k in actual medical bills, 49k in estimated total bills (including a possible 4th surgery).

My atty got very busy and really didn't return my calls anymore. I started contacting a Jr. atty who handled the updates and interrogatories to the insurance company. My last surgery was in April 2005. I updated my bills and they were sent to the insurance company's counsel. I later found out that my attorney gave a percentage of my case to this Jr. atty. I knew nothing about that.

My attorney said they pulled certified copies of my hospital records prior to mediation. But at mediation my attorney didn't have any records whatsoever of my last hospital visit. None. But the defense counsel did. And in it was an odd statement by an intern that stated that I said during the intake that my foot injury "was not from the 2003 car accident". The accident was in 2001, the first foot surgery was in 2003. This was the third surgery to correct an issue from the first 2 previous surgeries, so in a way it wasn't directly from the car accident but from a series of surgeries on my foot. Regardless, neither one of us could come up with even this logic when presented with that form. We had no answer. We were stunned. Literally silent.

But after a few hours, I understood what had happened. And had we known this paper existed, I had a friend in the room with me when the admitting form was done. She confirmed (and stated she would have testified/ signed anything confirming this) that I said said that this condition being corrected that day didn't happen in the car accident originally, but presented itself in 2003 after the first surgery. The intern compiled the statements and then it sounded like a more general statement that my foot condition wasn't accident related at all.

When this paper was brought out, my lawyer was visibly shaken as was I. He had prepped me about what their defenses were but this was not mentioned. He had no file. He had no answer. He stated my case just sank into nothing. He admitted that not being ready for that was the end of any chance of any real settlement. My case went from a 100-250k case (the mediator agreed) to a 100k or under case in less than a minute. But with my attorney so stunned, he got lowballed down to 55k total and took it gratefully.

I have out of pocket expenses of 19k. Of the 55k, I'll get 36.6k. Less than my attorney for not pulling my medical records and for getting blindsided in mediation for something that could have been explained and with a witness documenting the error.

On the elevator ride down, he admitted he didn't have that hospital visit, had not seen that statement, and he offered to reduce his fee from 40% to 33%. I was so stunned I couldn't even hardly talk. He also admitted that if that had happened in a courtroom, we wouldn't have even gotten the 55k. We would have gotten 0 likely.

Now, if defense counsel can bother to pull my medical records, doesn't it stand to reason that my own attorney should have reviewed them as part of a "reasonable standard of care"? Is this malpractice?

And if it is malpractice, I'd rather settle it with him for a more reduced fee, none if possible. I have litigation fatigue but I am very angry that my own attorney didn't even bother to have all my records and wasn't prepared. It seems that the Jr. atty didn't get the last records from my hospital visit although he had the bills and had updated the interrogatories for defense counsel.

Any suggestions are very welcome.

you signed the settlement agreement and release of all claims?

yes, for the insurance company but not with my attorney. I know I can't go back to the insurance company and ask for more money but I'm wondering, if this is malpractice can I:

1. Ask for more of a reduction in my attorney's fee (the check isn't in yet)
2. Sue my atty for malpractice and recover what should have been the settlement amount.

I got a letter today from the hospital records director confirming my atty did not order those records ever. Additionally, the mediator in the case had 24 years experience, agreed the case was worth at least 100k, and that this issue screwed our case without a rebuttal.

If I want to pursue a legal malpractice case, can I cash my portion of the personal injury check when it comes in? I've signed the insurance company release but haven't signed any release with my own attorney (nor do I plan to). I'm guessing he'll redraft an agreement with the new percentage, throw in a release of liability, and hope I sign it.

the problem you face is that you did not have to agree to the settlement. It was only a mediation. you could have decided to go to trial.

However, the medical records containing harmful information to your case is not the fault of your attorney. He may not have been prepared and lacked all of your medical records, but you and your attorney could have asked for the medation to be continued until all of the information was obtained.

stephenk said:

the problem you face is that you did not have to agree to the settlement. It was only a mediation. you could have decided to go to trial.

However, the medical records containing harmful information to your case is not the fault of your attorney. He may not have been prepared and lacked all of your medical records, but you and your attorney could have asked for the medation to be continued until all of the information was obtained.

Click to expand...

What if it was not Mediation, but rather, binding Arbitration, some people may use the terms interchangably

It was mediation, not binding arbitration.

You're right, it should have just been continued. Neither my atty nor I realized it could easily be countered (we were literally stunned) and he basically lowballed the case to get any check. I asked him what to do and he said settle it now. He didn't suggest continuing it or I would have.

For him that's still good. 15-20 hours work, 18k. For me it sucks. 3 surgeries, 4 years dr's visits, uncontested liability... I'll get 12 after my out-of-pocket expenses.

I am bothered that my attorney didn't say we should continue mediation later after review. Again, this could have been countered:

1. Hippa correction (and if done fast enough, the admitting guy might have agreed). We sent updates only 3 months after this last surgery but this file just wasn't ordered. So I should have known about this issue only 3 months after it happened.
2. Affidavit of the person with me (a friend, yes) at the admitting stating that I said that this condition presented itself in 2003 after the surgery (and that I didn't think that this was there before this).. which, is true, it wasn't but that I never said it wasn't accident related at all. It was only after the first surgery to correct injuries from the car accident.. so they're connected but this diagnosis was only present 2003 and after. Again, the guy put after the accident in 2003 (so he definitely mixed up the dates)
3. My Dr. would have agreed this wasn't there 2001-2003 but only after 2003.. so what I said was correct but the med record just stated it a bit too generally

This, at the worse case, would have put 11k back in the formula for damages (or even split the difference and add in 5.5k)... 15-30k more than settled for and perhaps back up to the 100k.

I do not blame my atty for what is in the med record. I'm not a common idiot. There were 2 sides to every argument. But if the defense counsel thought it was a complete slam dunk there would have been no mediation but instead they would have offered 5k or nothing and told us to take them to court. We were at mediation because there were obviously merits to my case.

I am outraged that we got sandbagged by something that could have been prevented (or at the very least mitigated in writing) simply because my atty was too frigging busy running another business to do the prep himself.. he subbed it out to another atty who I can't even find listed in the Ga. Bar. Ok, so he sells part of my case, this guy doesn't do his job, my atty and I head into mediation and get hit on the head.

Let's face it, the mediator saw all our reactions (we were in separated from the defense after the opening statements) and then we went back and forth but after this, they barely went up and we completely caved so by not having a response it communicated great weakness in our case at that time... trust me, without a rebuttal this was devastating. With a rebuttal, it's another issue of contention, yes, but it's not a slam dunk. In front of a jury it's a finished case without a rebuttal, at least in mediation it still left us with any settlement.

And as to why I took my atty's advice on settling.. well, he has 10 years experience, this is my first wreck and lawsuit. I hired him to guide me through this... and it hit me in the elevator that it wasn't that he didn't see it in his files.. it wasn't in there at all!

I think that getting all my files is important to do a good job with my case. Isn't that considered part of a "reasonable standard of care"? Because I'll say this, everyone I have talked to about this have freaked out that my atty didn't procure all my medical records when the defense did... and it made a difference.

I do. And so do 3 lawyers in Atlanta who sue for legal malpractice. The tough part is trying the case within the case part. What would have happened with an answer.

Other than:
1. Renegotiate his fees
2. Sue for malpractice
3. I was told there is fee arbitration with the state bar, but I'm wondering about the fox watching the chickens and whether or not that would even be a silly way for me to go.

stephenk said:

the problem you face is that you did not have to agree to the settlement. It was only a mediation. you could have decided to go to trial.

However, the medical records containing harmful information to your case is not the fault of your attorney. He may not have been prepared and lacked all of your medical records, but you and your attorney could have asked for the medation to be continued until all of the information was obtained.

Click to expand...

It is in my contract that I can't unilaterally decide to go to trial. My atty has to agree. And he told me there was no way that he would take this to trial. So, no I couldn't. I would have had to pay him for his time (at an elevated rate if he was willing to give up his percentage) and hire another atty.

Frankly, we should have continued mediation. I wholeheartedly agree. We could have resumed from a position of some strength then.

But isn't part of a "reasonable standard of care" bothering to get all my records from which to prepare my case. I know PI attys are taught to get in and out of percentage cases with as little work as they can, after all, that's how the numbers then make sense. But not getting all my files isn't fair to me either. How can I be adequately represented with an atty who isn't prepared?

you can negotiate your attorney's fees but at the end the retainer agreement is controlling.

discuss with your attorney about his attempts to compromise the medical bills with your doctors. Doctors who work on a lien basis typically charge more at first and then negotiate to a lower amount when the case resolves.

Any of your bills covered by insurance? If yes, again have your attorney attempt to compromise the amounts. The lower the bills the more money in your pocket.

You would need to consult with an attorney who specializes in malpractice to determine if your case has merit.

If you were present at the mediation, why didn't you just ask for a break and talk to your attorney outside and tell him the misunderstanding about the surgeries? It was only mediation. You can take breaks in mediation, and you don't have to settle. Neither do you ordinarily have to bring records to mediation. It is not court, you don't have to present evidence. All you needed to do was to tell him that they had it wrong. There is no reason that you had to prove to him or to the other side that you had the documents. Your statement and explanation such as you gave here should have been enough. I think you have some misconceptions about mediation. One, I think you think that you had to prove or disprove facts in mediation. That's not true. Two, I think you think that you HAD to settle in mediation. That's not true. Three, I think that you think that you could not have conferred privately with your attorney during mediation. That's not true. I don't think you have a claim against your attorney because, while he should have known what was in the file, you knew better than anyone what you said at the hospital. You could have reminded him right there that the other side was misstating; that the records would show that; that you wouldn't settle for that amount; and to either raise the settlement amount or go to trial or reschedule the mediation. But even after that, you could have changed your mind before signing the settlement agreement. You should have spoken up.