High risk, high reward

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With complex subject matter, excellent lawyers from well-resourced firms on the other side of the table and a high probability of cases going to trial, there’s no debating that medical malpractice is a very intimidating area of law. But these cases are also very rewarding, says Jan Marin, senior associate and lawyer at Gluckstein Lawyers.

“My clients have been significantly impacted by medical error. I want to help them move forward, both in terms of determining what happened and obtaining a financial award on their behalf” she says. “I personally find it so interesting — I look at many of my new cases as mysteries. I need to figure out what happened and why.”

Marin got her first taste of the practice area as a junior lawyer at Gluckstein, where she worked alongside a senior medical negligence lawyer and soon found she enjoyed these specialized cases. Partnering with a more experienced lawyer is her number one tip for anyone interested in running medical malpractice cases because “they can try it out without getting in over their head. They will be mentored throughout the process and will be able to experience it without having to switch law firms or completely shift their career,” Marin says.

Now a leading lawyer in the area herself, Marin is often asked by lawyers who don’t specialize in medical malpractice to lend a hand, whether she acts as co-counsel throughout or is brought in early to help vet the case. With a steep learning curve in terms of case selection, partnering also helps less experienced lawyers master that imperative skill. You can have a really bad experience doing a medical malpractice one-off if you’ve not chosen the right case “and just get steamrolled,” Marin notes, which discourages lawyers from pursuing medical malpractice cases in the future. It’s crucial to give yourself the information in the early stages so your time and money is put into cases that have a higher likelihood of success, she says, adding she does an initial high level investigation including reviewing pertinent records and consulting experts before giving the client an opinion on whether their case is viable.

It’s also key that any lawyer considering the medical malpractice field is willing to wade into the medical aspect of cases, something Marin says “really fascinates me.” Her favourite part is “digging into a case when it first comes in,” when she takes a thorough dive into the subject matter. Often, she conducts her own medical research and subscribes to various medical publications for that purpose. Though complicated and time-consuming, “it’s not a chore — I enjoy that part quite a bit. To be really successful in any area of law, you need to be interested in it.”

Marin also cautions that if you don’t enjoy going to trial, this probably isn’t the area of practice for you, because these cases certainly go to trial more frequently than other areas of personal injury.

“At Gluckstein, we’ve always felt that a willingness to take the case to trial increases our reputation amongst the bar as lawyers who take these matters seriously and are willing to take them as far as they need to go,” she says — but she adds it can be expensive to do so.

Somebody practicing on their own might be concerned about the level of disbursements they’d have to incur and because these cases require medical expertise of each type of health care provider who is sued, and often another opinion on causation. This can quickly become very expensive. It’s important to learn from those with experience to ensure you are getting the right opinions and doing so in the right order. Marin also notes that these matters require a willingness to put significant time and thought into case preparation as examining a physician on their area of expertise can be challenging.

"As people who aren’t trained physicians we need to know our case really well,” Marin says, noting a mentor once told her that for every hour he examines medical negligence defendants at a discovery he’s putting in a day of work. “Preparation is important for any kind of case, but a medical negligence case requires intense preparation.”

As important as it is for junior lawyers or lawyers in other areas interested in making the switch or to test the waters, Marin cautions it’s a difficult area to dabble in. If you’re only doing a case here or there it’s hard to pick up on the nuances. Ultimately Marin wanted to specialize in an area of law and found that medical negligence cases — while intimidating and substantially more work — pushed her to be a better lawyer. There’s also a lot of support, she notes. While there’s a lot of competition in certain areas of personal injury, the same isn’t true in the medical negligence field.

“It’s a great, collaborative group of people all of whom, in my experience, are willing to discuss your cases and share their experience in various areas of medical malpractice.”

For those interested in learning more about the field, Gluckstein’s bi-annual Medical Malpractice Conference – Risky Business — is free of charge and showcases a variety of speakers, including senior medical malpractice lawyers and other experts in the industry.