Crucial Questions to Ask A Prospective Medical Malpractice Client

TASA ID: 1790

You meet a prospective client who wants to sue a health care provider because of the care he or a loved one has been given. What information do you need? Medical malpractice has one of the lowest success rates for plaintiffs at trial (37%, Federal Judicial Center, integrated database, fiscal years 2002 -- 2003). How can you maximize your chances? This is determined mostly at the outset. Case selection is paramount.

Start with the basics:

The Basics

  • Name, age, gender and contact information of the injured person.
  • Date of the malpractice; date the malpractice was discovered - are you within the Statute of Limitations? Many states, like Florida, have a Statue of Limitations that begins when the malpractice event should have been discovered.
  • Is the prospective client likable?

The next two questions are the core of all medical malpractice cases.

  • The negligence: what did a healthcare provider do or omit that was careless (that was different from what a careful provider would have done)?

You must get this information from the client himself. It is impractical to go through a stack of medical records "looking for the negligence" -- that is similar to a patient asking a doctor "please fix me" without relating any symptoms. That job becomes much easier when a patient says, "I have chest pain on exertion" or "I have blood in my stools."

  • The resulting harm: If the malpractice had not occurred, how would things be different now and in the future, and how can we show this harm to a jury?

Types of harm that do not lend to easy medical malpractice claims include (1) past pain, (2) mental anguish in waiting for treatment or test result where ultimately the outcome was favorable, and (3) current and future pain in the absence of concrete proof we can show a jury.

If there is no clear answer to these last 2 questions (negligence and harm), a medical malpractice claim will be difficult. If the basics have favorable answers, then you can dig deeper.

As you listen to the client, see what patterns fit his story. The following are common patterns. Most stories will fit into more than one pattern, and you will need all those answers.

Delay or failure to diagnose or treat

Many cases involve a delay in either diagnosing or treating a condition. In that case, here are the crucial questions that need to be asked:

  • What were the symptoms?
  • What was the wrong diagnosis?
  • What was the right diagnosis?
  • How did you get the right diagnosis?
  • When should the diagnosis have been made?
  • When did it get made?
  • How long specifically was the delay (for example, 3 months)?

If one doctor misses a diagnosis, but another doctor discovers it shortly afterwards, you will have to prove that those few weeks made an actual difference. This is often so difficult that it precludes bringing a malpractice claim.


Patients are shocked when faced with cancer. Looking back, they get angry if their symptoms had been ignored. The crucial questions are the ones for Delay (above), and the following:

  • In what area of the body did the cancer start?
  • What was the cell type and stage at diagnosis?
  • What is the current stage and outlook?

Some types of cancer have such a bad prognosis (pancreatic, small cell lung) or "good" prognosis (early Hodgkin's lymphoma, testicular) that even a long delay in diagnosing and treating may not matter.

Problems after surgery

Surgery is involved in many claims. The crucial questions are:

  • What was the reason the surgeon recommended the procedure?
  • What was the actual mistake that led to your harm?

Surgery has a high (10-50%) chance of complications in the absence of negligence.


Patients are often unhappy with the results of plastic surgery. These are difficult claims; you can decide whether there is enough to pursue a case by asking for before and after pictures of the affected area or areas.

  • What was the reason the surgeon recommended the procedure?
  • Do you have the promotional literature showing what to expect?


Infections acquired while getting health care for an unrelated condition (nosocomial infections) are unfortunately much too common. The crucial questions are:

  • What was the condition for which you were being treated?
  • What was the bacteria or virus with which you were infected?
  • What was the actual mistake that led to the infection?

MRSA (Methicillin-resistant Staphylococcus aureus) has been in the news a lot recently. A person getting MRSA at a hospital, without being able to prove what the hospital personnel did wrong, has a tough case.

It is usually hard to prove that an infection was caused by malpractice. An exception is an infection due to a central line: there is good data that excellent technique brings the infection rate to almost zero.

Foreign object left behind

In some cases, the negligence seems easy.  If a foreign object is left behind, find out where the object is now, the circumstances of the first surgery, the symptoms that led to discovery of the object, and the circumstances of the retrieval surgery. Send a letter requesting that the facility possessing the object preserve it, as it may be involved in litigation.

Wrong drug

  • What was the condition for which you were being treated?
  • What drug was given?
  • What should have been given?


If a drug or device was recalled, here are the crucial questions:

  • What drug or device was recalled?
  • Where is the device or drug bottle now?
  • Do you have the Device ID card?
  • Why was it recalled?
  • Did you suffer from the recall? How?

Emergency department

In cases involving emergency care in Florida, Texas, and other states, you may have to prove that the care was reckless, not just negligent.


If someone died as a result of the malpractice, find out whether there is a potential claimant.  For example, in Florida you need a surviving spouse who will live long enough to bring a claim, or a child under 25, or otherwise dependent on the decedent. An adult independent child does not have a medical malpractice claim in Florida for the death of a parent, except to recoup funeral expenses.

  • Is there a surviving spouse who will live long enough to bring a claim?
  • Was there an autopsy? Do you have the autopsy report?

An autopsy report is very helpful; its absence makes proving your case difficult.


You should get the information above from the potential client, but back up the answers with the medical records.  Organize and paginate the records before sending them to an expert.  That way, it's easy during discussions with the expert to refer to a particular page and to cull out the "smoking gun" documents. Medical malpractice is a specialized, difficult area of the law with a low success rate. When practiced effectively, it has its rewards. When plaintiffs win at trial, the median amount awarded ($600,000) is higher for medical malpractice than for almost any other kind of personal injury (Federal Judicial Center, integrated database, fiscal years 2002 -- 2003).

This article discusses issues of general interest and does not give any specific legal, medical, or business advice pertaining to any specific circumstances.  Before acting upon any of its information, you should obtain appropriate advice from a lawyer or other qualified professional.

 This article may not be duplicated, altered, distributed, saved, incorporated into another document or website, or otherwise modified without the author's permission through TASA.

Previous Seven Tips for Cases Involving Medication
Next Boating Accident Gasoline Explosion- 32 Foot Aluminum Cruiser
Tasa ID1790


Let Us Find Your Expert 

Note: This form is to be completed by legal and insurance professionals ONLY. If you are a party in a case that requires an expert witness, please have your attorney contact TASA at 800-523-2319.


Search Experts

TASA provides a variety of quality, independent experts who meet your case criteria. Search our extensive list of experts now.

Search Experts


  • I think it's always good to have access to experts when [TASA] make[s] the process so easy."

    Scott McIntosh, Lewis McIntosh & Teare, Royersford, PA

  • As a busy practitioner, managing a sizeable caseload, I can use all of the help available to me. If I can outsource a task, particularly one as important as securing a qualified expert, I will jump at the opportunity. I use TASA in nearly every case where I need to find an expert witness, be it an engineer, an architect, an economist, etc. They have thousands of qualified experts to refer in virtually any field. Best of all the process is extremely simple. When I need an expert I simply contact TASA, whose knowledgeable representatives ask you targeted questions about your case, your legal theories, and your goals, in order to find the right expert for your case. I usually receive CVs and calls from the potential expert within hours. If you find the originally selected person is not a good fit – for whatever reason – TASA will work with you to find the right person. I would happily recommend this service to any attorney."

    Patrick K. Gibson, Gibson & Perkins PC, Media, PA

  • Ms. Darlie I. McDonald RN was awesome on the witness stand, and we prevailed in our case to the tune of  [a] (highly unusual [amount] for a medical malpractice [case] in our area).  I'd highly recommend her."

    Shane Reed, Shane A. Reed Law Office, Jacksonville, OR

  • I appreciate your inquiries and offers of assistance as well as the consistently high-quality, well-organized, and erudite TASA webinars, which invariably have excellent presenters."

    Maurice S. Kane, Cummings McClorey Davis Acho and Associates PC, Riverside, CA

  • Steven Kursh was an outstanding technical expert on our ecommerce IP lawsuit. He completed a massive amount of work on extremely complicated material, in a very short period of time. His work product was first rate and I think he would have done a terrific job if the case proceeded to trial. He is very articulate and helped us. I only wish we had gotten him involved sooner in the litigation."

    Daniel J. Brown, Reiss Sheppe LLP, New York, NY

  • I thank you all for the response to my request for an expert witness...Both Mr. Scott and Mr. Bianchi appear to be well-qualified for this case, but we have hired another expert. As always, I was impressed by TASA's ability to produce exceptionally well-qualified candidates with great speed."

    John Thomas Dzialo, The Law Offices of John Thomas Dzialo, Santa Ana, CA

  • Thank you for your quick response and the names of the two proposed experts. The situation that gave rise to our search for these experts has resolved and we will not need to retain them. However, we will continue to keep TASA in mind as these needs arise from time to time as your breadth of coverage for experts of all types is unparalleled, in my experience."

    Bart W. Brizzee, County of San Bernadino, San Bernadino, CA

  • I have used TASA for the last five years for locating an expert for many personal injury cases. On each and every occasion, TASA was able to find me more than one qualified expert. With such a variety of experts, I was able to select one who met my client's needs in prosecuting these claims. I found the experts TASA referred not only qualified, but available on a moment's notice. Your fees are reasonable and fair, and I will continue to use TASA for the remainder of my career."

    Robert Oushalem, Esq., The Law Office of Robert Oushalem, San Jose, CA

  • I recently used TASA for the first time to locate an expert to testify in a case requiring rather unusual expertise and where there were no applicable regulations or standards for guidance. TASA referred an expert in California who was everything a lawyer looks for in a forensic expert. He was promptly available for consultation, efficiently prepared for deposition and trial and very persuasive and credible with the jury. TASA's administrative services and assistance in locating this expert were excellent, and we would certainly use both the expert and TASA in the future."

    Theodore Phillips, Miller Hauser Law Group, LLP, Placerville, CA

  • TASA has always given me first-class service, but in a recent matter, TASA found the 'needle-in-the-haystack' expert witness we feared didn't exist. We needed an expert for a very narrow and limited issue in a very narrow and limited industry. Because TASA has an extensive expert witness database, it was able to give us a referral almost on the spot. It's why I always turn to TASA first."

    Kathleen A. Herdell, Law Offices of Kathleen A. Herdell, St. Helena, CA

  • There are numerous companies that provide litigation experts. However, I always choose the TASA Group because of their quick response in finding a qualified expert for my particular case. I have extreme confidence in the TASA Group and will continue to use their services in the future."

    Katie A. Killion, Esq., Chiurazzi & Mengine, LLC, Pittsburgh, PA

  • I spent hours trying to locate an expert in a very technical case involving a defect in a medical device. I could have saved a lot of time by calling TASA first. Within hours, I was supplied with the name of an engineer who had more than 30 years of job training, education and expertise in the precise area involving the device. Bravo TASA!"

    Timothy W. Peach, Partner, Peach & Weathers, San Bernardino, CA

  • We were involved in a case pending for more than five years with seven parties from three states. Three mediations failed before we looked to TASA for an expert. TASA referred an expert who clearly understood the complexity of the project and could effectively support his opinion. If it weren't for his expert advice and deposition testimony, the case would not have settled. Interestingly, the case settled within 90 days from the date this expert began."

    Renee Colbert, Esq., Corporate Counsel, W.G. Tomko, Inc., Finleyville, PA

  • Using TASA to find experts for defending our client in a negligent homicide case ended up being one of the most important decisions we made in trial preparation. The experts they suggested were exactly what we needed for the case. I truly did not expect to find experts that would be such a perfect fit for the nature of case. TASA provided us with highly qualified experts in somewhat narrow fields of expertise. A large percentage of our victory is due to the experts recommended by TASA."

    Marta Farmer, Esq., Carl S. White Law Office, Haver, MT

  • I have used TASA's services since the 1980's and have never been disappointed. TASA is indispensable for locating that hard-to-find expert. TASA representatives have always been courteous and pleasant, with the attitude that they cannot do enough to help. I expect to continue using TASA throughout my career."

    Brad W. Greenberg, Esq., Smyth Law Offices, P.C., Brockton, MA

  • I needed to retain a multitude of scientists from a variety of disciplines for a complex litigation. Initially, I went through a series of interviews with an extremely knowledgeable and professional team of TASA advisors. They were able to find highly qualified experts in the specific fields, all of whom turned out to be superior in qualification and area of expertise to my adversary’s experts. I am a TASA believer!"

    Nooshin Namazi, Partner, Nicoletti Hornig & Sweeney, New York, NY

  • TASA always comes through in the difficult IP cases. Their representatives work with you to refine the search criteria and quickly send you a list of very qualified experts."

    Timothy L. Boller, Principal, Seed Intellectual Property Law Group, PLLC, Seattle, WA

  • Special thanks to our TASA referral advisor for her quick response to our initial request—we were extremely happy with how fast TASA was able to assist us! Your group does excellent work, and it is always my first stop when looking for an expert."

    Susanne K. Sullivan, Senior Attorney, Southwest Airlines Corporation, Dallas, TX

  • When we needed an expert in a patent infringement lawsuit, we turned to TASA. We were looking for a witness qualified in two unrelated technical areas, and TASA worked with us to identify and refine our requirements. TASA performed well, promptly providing us with several excellent candidates to consider, one of whom we retained."

    Joseph T. Miotke, Partner, IP Practice Group, Michael Best & Friedrich LLP, Milwaukee, WI

  • Our team had a very positive experience with TASA. The Expert was professional, efficient, and certainly an expert in his field. His work and testimony contributed to a winning decision for our client! We will recommend the Expert and TASA whenever appropriate."

    Stephanie Sprague, Esq., CT

  • (The Expert) WAS A PERFECT FIT for my case: qualified, competent, easy to work with, attentive to detail, knowledgeable, smart, communicative, enthusiastic, resourceful—have I left anything out? I highly recommend TASA and would be happy to share my experience with anyone else. Thank you!"

    Michael Porrazzo, Esq., The Porrazzo Law Firm, Mission Viejo, CA

  • The expert was very thorough. TASA was quick to respond with an answer to my request. I have used TASA in the past under various other law firms and have been pleased. TASA continues to live up to expectations and then some."

    Anne Desormier-Cartwright, Esq., Jupiter, FL

  • Your organization found us an appropriate expert witness in less than one day. This was excellent service. The expert you found was excellent and a pleasure to work with."

    William A. Ehrlich, Esq., Allentown, PA

  • (The Expert)…accomplished exactly what we wanted. TASA was very prompt and efficient in locating him. All fees were reasonable."

    J. Michael Lehman, Esq., Bruce, Bruce, & Lehman, Wichita, KS

  • We needed an Internet expert right away to meet a deadline. One phone call to TASA, and in less than a day, TASA called back with a list of 8-10 experts who were exactly what I needed. The TASA expert I chose knew the business and mechanics of the Internet so well—he was a PhD and professor who had written a book on the subject—that he put the fear of truth in the defendant that caused him to settle. When I get the kind of service that I did from TASA, I stick with it and use it again and again."

    Philip Green, Attorney at Law, Green and Green, San Rafael and San Francisco, CA

  • Excellent—in a word. I just do not have the time to hunt for experts. (The Expert) was fantastic. Thank you for providing such a quality service."

    Francesca Carinci, Esq., Steubenville, OH

  • TASA stands for Tops At Serving Attorneys. It’s always rewarding working with TASA."

    Marshall A. Bernstein, Esq., Philadelphia, PA.

  • That was, however, one of the best and most interesting webinars I've seen in the last few years.  Thank you for hosting it and introducing me to such a knowledgeable and caring person." - Referencing the Medicolegal Consequences of Post-Traumatic Stress Disorder in Civilian and Military Populations webinar. 

    Lori Bauer Apodaca, The Law Office of Lori Bauer Apodaca, Los Lunas, NM 

  • I needed a dental malpractice expert to assist me in a complex negligence claim. The very able staff at TASA had no difficulty identifying a knowledgeable professional who rendered a reasonable opinion in support of the case, which aided our client in receiving a fair amount of compensation. I am grateful to TASA for its invaluable assistance!"

    John Hermina, Hermina Law Group, New York, Pennsylvania, Maryland & Washington, DC

  • For many years I have relied upon TASAmed to provide excellent medical malpractice experts. As a sole practitioner, I find it reassuring to know that a seasoned expert is just a call away. Usually, TASAmed has found just the right expert in a day or two. The support and guidance I receive from TASAmed is a vital part of my law practice, and I have come to expect both great service and high rewards from my TASA cases."

    Thomas J. Massey, The Thomas J. Massey Law Firm, Fallbrook, CA

  • The caliber of physicians that TASAmed has referred to us is superb. Prior referral groups used the same experts over and over again. With TASAmed I have access to experts all over the United States. I’m not limited to the same experts. The TASAmed staff is easy to work with and very professional, with an established track record. When I call for a medical expert, I’m called back the same day, and I often have an idea of what expert will be contacted before my first call is completed."

    Kari Alexander, Certified Legal Nurse Consultant, Texas

  • We hadn’t been able to find the medical expert we needed, and, frankly, I didn’t think we’d find one in that field. TASAmed was able to find us an expert with the exact expertise and medical experience we needed. Your referral advisor was very helpful and found our expert in one day."

    Kurt Osenbaugh, Partner, Alston & Bird, Los Angeles, CA

  • TASAmed’s service was prompt and efficient in connecting us with the right person. The expert was so cooperative and helpful. With how challenging it is to find a narrow area of medical expertise, it’s extra helpful to have your TASAmed pool to plug into instantaneously."

    Greg Roosevelt, Esq., Law Office of Greg Roosevelt, Edwardsville, IL

  • TASAmed has connected me to credible experts in four medical cases just this year. TASAmed and the referred experts respond quickly, the fees are reasonable, and the referrals are well tuned to the fields I request. Since the experts are already associated with TASAmed, they are comfortable having substantial conversations about the case, both before and after record review."

    Martin A. Cannon, Esq., Cannon Law Offices, Crescent, IA

  • I have used TASAmed a number of times and have always been happy with your give-and-take timeliness. Once I requested a medical expert in a particular field, but, after speaking with your referral advisor, we concluded that an expert in another field would be more effective. That same day, I spoke to two experts the advisor gave me, and I retained one."

    Mark A. Lope, Esq., Lope and Honlihan, Butler, PA

  • Very close to the time of trial, the TASAmed advisor quickly referred me to several experienced ER trauma physicians to review medical records and prepare me for cross-examination. After selecting my expert, I over-nighted records for review, and the doctor found valuable information for my client's defense. Thank you, TASAmed, for this timely, specific, valuable referral."

    Charles Morgan, Esq., Law Office of Charles L. Morgan, Jr., Charlotte, NC