In a recent episode of our Legal Beagle Podcast, Jonathan Negretti, principal of Negretti & Associates, had the honor of interviewing medical malpractice lawyer John Ager. We — and many others in the legal profession — consider Ager to be one of the best medical malpractice attorneys in the state of Arizona.
Ager is a principal of Phoenix-based law firm Sandweg and Ager, which offers more than 70 years of combined experience litigating medical malpractice, personal injury, and wrongful death cases.
In the following conversation, Ager defines medical malpractice, explores the elements that make a good medical malpractice case, and offers ideas on how to find a medical malpractice lawyer.
Jonathan Negretti: How would you define medical malpractice?
John Ager: Medical malpractice, in short, is where a health care provider does something wrong. There are standards that apply to all kinds of different health care professionals — surgeons, nurses, anesthesiologists, and obstetricians. They all have to obey the rules that apply to their treatment of patients. Medical malpractice is simply when they fail to do that.
Negretti: If someone thinks that they had something go wrong in surgery or in some sort of procedure, what do you look for as an attorney, who represents people in medical malpractice claims? What sorts of things do they need to have for you to say this is a case that we can take forward?
Ager: Just because somebody has a bad outcome after a visit with a health care provider — whether it’s a visit to a pediatrician or brain surgery — it doesn’t necessarily mean that there has been medical negligence. Bad outcomes happen in all kinds of situations, where nobody has done anything wrong. There are risks involved in health care. Just because something bad happens doesn’t mean someone was negligent.
Negretti: Let me stop you right there, because that’s an interesting point. People say it was a risk of the procedure. Can you dive a little deeper on what that means — “risk of the procedure”?
Ager: For example, let’s take an abdominal surgery. The surgeon is going into remove an ovarian cyst, and there happens to be a structure that is unexpected, because it wasn’t seen on CT. The anatomy of the person is a little bit different from what one might expect. There is something about the presentation that is a little bit unusual, and the surgeon lacerates an artery or some other organ unexpectedly. That’s not necessarily malpractice. That’s an example of perhaps a bad outcome happening without anybody really having done anything wrong.
Negretti: What basic elements need to be present for you to consider taking a case?
Ager: You need to have three things.
First, you need to have a healthcare provider that makes a mistake — and that means that they didn’t do something that they were supposed to do, or they did something that they weren’t supposed to do.
Second, you have to have a relationship between that mistake and a bad outcome. Not every bad outcome can be attributed to a mistake. Teasing out whether a bad outcome is a result of a mistake or a result of a natural consequence of something else is something that you need to look into.
The third thing is damages. Damages in medical negligence cases need to be significant. While anybody who has been harmed by any kind of conduct is going to have damages of some sort —and I feel badly for the people who have been damaged as a result of medical negligence — unless damages are very significant, it’s not a case. Very significant means in the $250,000 to $300,000 range — probably just to start, under most circumstances.
Those three stars absolutely have to come into alignment: Somebody doing something wrong, causing an injury, and significant damages.
Negretti: If someone thinks that they were wronged in some way during a medical procedure or surgery, and they don’t necessarily understand the legal components behind that, would you tell them to go online, do some research of their own? Would you tell them to call you and have a conversation with someone on your team?
Ager: Absolutely, I’d tell them to do both things. The Internet is a wonderful resource. Patients and physicians that I depose these days tell me patients go home after a diagnosis and, within 30 minutes, they know more than the diagnosing physician about that diagnosis. There are all kinds of excellent resources for patients, in general — and especially those who believe they may have been harmed by negligence — to get a better understanding of what’s going on and what the future might hold for them.
In terms of evaluating a particular set of circumstances in a medical-legal context, you absolutely need a skilled lawyer to do that. You need a lawyer that’s been doing this kind of work for a long time — preferably someone who is a certified specialist in injury and wrongful death claims, and who holds themselves out as doing this kind of work.
The Internet is a good place to go and find those types of lawyers. Especially if you are a moderately sophisticated consumer, you should be able to tell from looking at the Internet the people who are actually doing this kind of work and can give you good advice about whether you have a claim.
Negretti: What if my wife had a procedure, and I just had some questions about whether or not it was done correctly. I don’t know that I want to sue anyone. Would you say I’m still okay to call your office and talk to someone?
Ager: Absolutely. I’m happy to speak to anyone, and I think our profession owes it to consumers, generally, to take the time to let them know whether they have a case or not. Even if they’re not very confident that they do, or even if it’s a small case that might not, off the cuff, look like it is much. My staff and I will take the time to talk to anybody who believes that they have been harmed by medical negligence, and we will take the time to tell them at the conclusion of our interaction — whether it’s at the end of a phone call, at the end of looking at medical records, at the end of having them reviewed by an expert, whatever it may be — to let them know within an exceedingly high degree of confidence that they don’t have a case and the reasons why, if we’re not able to move forward.
Negretti: That’s amazing. I want to pause there for a minute, because there are a lot of attorneys that shy away from telling people, “You don’t have a good claim,” regardless of whether it’s medical negligence or just ordinary negligence related to a car accident. And you’re telling me you’ll sit down and, and tell people, “Look, based on our review of everything and the records that we’ve looked at, we don’t think you have a good case, and here’s why.” Is that safe to say?
Ager: I believe that a good lawyer has an ethical and professional obligation to the profession and to the community to take the time to shoot straight with a potential client. I understand that there are lawyers out there that are afraid of medical malpractice, or of legal malpractice lawsuits, who are giving bad advice.
The code words that you would hear are, “You know, I’m too busy,” and “You know, I just don’t have time for your case.” That’s code for “You don’t have a very good claim.” But it doesn’t help the potential client out. It doesn’t help the community out, to send people off to somebody and with some degree of hope that they shouldn’t have. If you’re hearing something like that, you know that is probably what it means. You really need to hear from somebody — who knows what they’re talking about — “Unequivocally, I don’t believe that this is a case.” When that happens, I always encourage folks to get a second opinion.
Second opinions from lawyers are like second opinions from folks in every other profession. Not everybody sees things the same way that I do, and I don’t see the same things that other people see. So, it’s important, I think, to get at least a few people on board, if you do have a significant claim, or if you have some concerns, to make sure that you’ve heard from a few people the same type of thing.
People who have been harmed by medical negligence — people who have been harmed by any kind of an injury — have had their lives likely significantly affected, in probably more than one way. It’s important that at the end of the day that they know that they’ve done everything in their power, that they’ve done everything reasonable, to pursue a claim — if that’s something that they wanted to do, or something that they were considering. If you wait too long, you’re going to lose the opportunity to pursue a claim. The last thing that anybody wants to be thinking about at some point in the future is, you know, “Gee, did I have a claim, and should I have pursued it?” once it’s too late.
Negretti: Out of a hundred cases that your team reviews for possible representation, how many of those will you take?
Ager: I think that our intake is probably consistent with most lawyers doing this type of work. Based on what I hear from my colleagues, it’s around one in a hundred.
Negretti: One out of a hundred!
Ager: It takes quite a bit of time to do this kind of work. It’s important work. It’s important that we look carefully at these cases. Again, it’s important for the folks that come to us, to know why it is that they don’t have a case in those 99 times, that they don’t. And that’s just as important as it is for us to help the folks, in the one case out of a hundred that we’re able to take.
Negretti: What is the expected cost? I know this could vary greatly based on the complications of the case, but what would you expect someone to spend on a medical malpractice claim?
Ager: Well, first of all, if you are speaking with a lawyer who wants to spend any of your own money on anything, run the other direction as fast as you can. No reasonable lawyer will require that of a client. No reasonable lawyer will put the client on the hook for any of that lawyer’s costs.
At the end of the day, a client could be responsible for the costs of a defendant who is sued and prevails. There are a lot of ways to prevent that from happening, but that is a risk. Clients need to be told that up front.
In terms of what it costs someone like me, the range can vary. If we are investigating a case, it may be as simple as spending a couple of hundred dollars to look at medical records before we’re able to conclude that there is not a case and explain, with a high degree of certainty, to a potential client why there is not. It may be hiring an expert witness to take a look at the medical records and offer us an opinion. And that could be maybe $5,000, maybe more than that depending on the number of experts that you need.
Taking a case all the way through trial, depending on the number of experts that are required — and that’s the main cost in these cases, is getting experts to talk about those issues that I mentioned earlier: doing something wrong and causing damages. You need experts on all of those things, and if you have a whole lot of experts in a case, going through trial could run you easily over $100,000. I have heard lawyers spending upwards of $300,000 and $400,000 on getting a case through trial.
To contact John Ager, visit sandwegandager.net or call him directly at 602-648-3210.