AboutDoctor Settlement Expertise 27 years of front line plaintiff`s trial lawyer experience in PERSONAL INJURY INSURANCE CLAIMS. Along with other attorneys and insurance adjusters, we have created a website to help injured people settle their own personal injury claims. With the help from feedback from hundreds of satisfied members, www.settlementcentral.com has become THE AUTHORITY for Internet personal injury insurance claim settlements. I am humbled and honored if people can benefit from my experience and current volunteer work in helping injured people. I hope I can explain things in a manner that is useful for the questioner. If not, do not hesitate to e-mail me and I will take a second shot at it! Best Wishes for your physical and financial recovery.
Experience
Life Experience: 27 years of front line plaintiff's trial lawyer experience
Organizations: American Trial Lawyers Association (AAJ)
Washington State Trial Lawyers Association
Awards and Honors:
I am humbled and honored everytime I am selected to help injured people. And when people give feedback that they have benefited from my experience and current volunteer efforts, then that is a double honor and award for me.
My attorney missed statute of limitations in underlying dental malpractice and on that basis lost the case against dentists. I was not able to find a legal malpractice attorney on contingency fee basis yet, but they all ask for expert affidavit, which my attorney never secured.
When I finally approached one doctor for his opinion, with some dental X-rays in my possession he said that without complete dental record who can do nothing. I called to my attorney about those records, but she simply does not return my calls. I even don’t know whether or not she ever requested and received those record from treating dentists. How can I get this dental record from my attorney (or former defendants, who got out of the hook thanks to her negligence)?
Could you help me in this case (against an attorney, this is a legal malpractice in New York?
Thank you very much!
Answer Hi Vlad,
You are asking about malpractice in a forum regarding auto accident insurance claims. Doctor Settlement knows insurance settlements from personal injuries and www.SettlementCentral.Com teaches accident victims how to do self-help insurance injury claims. BUT NOT FOR THIS KIND OF CASE: I know nothing of malpractice inasmuch as that is a specialty that I always referred out to an attorney who KNEW WHAT HE WAS DOING.
But I can sense your frustration since you have done all that you can think of and there appears to be no solution. Hence, I will give you a lot of extra time—maybe an hour even—just to get you up to speed on how to go about this on your own.
I wonder if you hired a malpractice specialist or just a general practitioner. The latter can miss some important steps in malpractice claims. But it is NOT your fault if she represented herself as competent to handle the claim.
In any event, she would have had all of the records from your dentist and SHE MUST GIVE YOU THE ENTIRE FILE ASAP.
Here are two ways to get going on this claim.
#1. BEST: go to another attorney and offer him a 40% fee and let him request the file. Your first attorney will have to send it ASAP. He will also send your release to your dentist and they will have to send the file ASAP.
#2. Not so good, but doable: gather all of the above records yourself. THEN see an attorney. It is no good to just say that your attorney missed the statute of limitations UNLESS your underlying claim of malpractice had some merit. If it was meritorious, then yes—you are entitled to an award. If not—then nothing was lost, right?
Xxxxxxxxxxxxxxxxxx
Hence, we are back where you started me: trying to get the records so you can convince an attorney to take on another attorney. I just wanted you to really try to get an attorney to request your files first, since that makes it a lot easier. You may have to offer a higher fee on a malpractice case that is MARGINAL(see below).
One thing that these interviews with the attorneys tells me is that your case may be in the latter category: marginal.
Why? I have no idea about the merits of your case, of course. But I CAN tell you that we trial attorneys will NEVER pass up a fat hog. If there is a lot of money to be made do you think that these attorneys would be making you go and find an expert? Heck no! We are darn good at sniffing out a good solid source of serious cash, so we would have taken your case as is and found the experts ourselves, IF YOUR CASE HAD GOOD POTENTIAL IN IT.
If not, then that is when you will hear the malpractice attorney tell you to go and develop the case yourself and THEN come back to see me. Does this make sense? I just wanted to take some time to let you know why nobody was jumping up and down to get the chance to represent you.
Why is your case marginal? Only two reasons—or even just one of these two reasons:1) it has liability problems—i.e. negligence is going to be hard to prove; and/or even if there was negligence, the damages are not all that serious. What are the consequences of this poor dental work? Usually dental malpractice is NEVER going to result in damages worth getting excited about.
The proof of malpractice cases is always difficult and hence we trial attorneys need for the pot at the end to have sufficient value in it to justify all of the hassle involved in proving malpractice. In other words, the attorneys will ask themselves what a jury might vote for value even if negligence were to be conceded. It takes a lot of value to convince an attorney to get involved with a malpractice claim since (notwithstanding the insurance industry whining) THE VAST MAJORITY OF MALPRACTICE CLAIMS ARE DECIDED IN FAVOR OF THE DOCTOR.
If your damages are marginal, then you may have to offer a fee of 45% or more to attract an attorney.
Xxxxxxxxxxxxxxxxxxxxxxx
GETTING DENTAL RECORDS
If you have to go it alone at this stage, all is not lost, so do NOT GIVE UP HOPE. Take it one step at a time. First, let's get all of your records. #1 is to write a certified letter to the dentist asking her for the entire file, chart notes, x-rays, and all notes of any kind, including phone messages, e-mails, and miscellaneous notes, whether the record is tangible or electronic. Tell them that if they elect to reserve anything from you, then they MUST identify that material and state the reason for withholding it from you.
If they try to charge you for copying the file or the xrays, I would consult your state dental or medical board to see whether or not they have ruled as to who owns the file. In many states, the patient owns the file, and if the doctor wants copies, then she must make them at HER OWN EXPENSE. So shove that back at the doctor's office. Send all communications with them via certified letter, NOT via oral or e-mail.
Xxxxxxxxxxxxxxxxxxxxxxxxxx
GETTING LEGAL RECORDS
Everything in your legal file, excepting the original notes of the attorney, BELONGS TO YOU. You may have to agree to pay the cost bill owing (for records and copies, etc.), BUT they cannot make you pay it up front as a condition of getting access to your records.
You DO have the right to pick up your ENTIRE FILE, but here is the side topic you will want to know about. First, you likely do owe the attorney for any costs that she has incurred, such as copying charges for medical records, photos, and the like.
DO NOT panic and sign any agreement to pay anything to that attorney UNTIL your new attorney approves it. For example, this first attorney may present you a bill for $300 in costs and $4,000 in attorney fees, with the agreement she will give you the file now and you will pay once the claim settles. DO NOT EVER sign or even agree to such a thing.
She MUST give you the file if you need it now to prosecute your claim. Her failure to make dental contacts as is basic to the claim should be documented right there in the file. Make sure that you make her include all of her phone messages and notes. Be sure to ask for those, or make sure your new attorney asks for them.
Can this first attorney hold on to your file until you pay her the costs? Can she exercise a possessory lien on your file until you pay her? ABSOLUTELY NO. Tell her that you NEED the file to make arrangements for the settlement ASAP. Your new attorney will arrange for you to pay a lien on the file if you owe any costs or fees earned.
Once again, let’s look at the choices for you.
First, you could see another attorney and ask if she will take on your case at 45% fee. This affords you the easiest way and the better way of proceeding. She will give you an assessment of your chances to succeed. AND she will arrange to obtain the ENTIRE file, including any work product from the first attorney. You will not pay two fees: the two attorneys will share one fee.
Second, you sould call your state bar association http://www.settlementcentral.com/links.php and learn about your rights and then write to the attorney and make her give you the file. You will write the letter yourself. You can make the request along the lines of items I put in above. And make sure that you have whatever notes, etc the attorneys has from phone calls and e-mails she participated in during the time she represented you. Make sure you cite the fact that you NEED THE FILE ASAP so she cannot hold it for payment of her lien. The state bar association can give you some help on this.
I trust that my extra time here has produced some information that has been of value to you, and thus I would respectfully request that you take the time to locate the FEEDBACK FORM on this site and leave some feedback for me.
