Ask A Lawyer: Dan Canon Talks Absent Parents, Medical Malpractice And Stupid Corporations

Welcome to the first round of “Ask a Cranky Midwestern Lawyer.” These are real questions submitted to me by (supposedly) real people on the internet, for the express purpose of having them answered in my little column. All the usual disclaimers apply: This isn’t legal advice, or an advertisement for legal services, it’s just for fun. I’m not your attorney unless we have a signed agreement. You need to hire your own damn lawyer for your own damn problems, and that lawyer might tell you something totally different from the off-the-cuff advice you read in an alt-weekly after your third beer at Monnik. Here goes. 

Q: How can I keep my kid’s absent father/mother from getting my kid if I die?

A: The short answer is: You can’t. You should of course have a last will and testament prepared if you care about what happens to your stuff when you pass. But people seem to think they can control where their kids end up, too. That decision is up to a judge, and won’t be made until after you’re in the ground. In many states, a statement in a last will and testament about where a parent wants their kids to go will influence the court’s decision, so you should still put it in there. If your child has no surviving parents, and the person you designate is willing to care for them, then your wishes will probably be honored. But there are only so many things you can do from beyond the grave, and keeping your ex from getting custody of their own child isn’t usually one of them. Put another way, a parent’s right to be a parent overrides your posthumous wish that they not be one.

Still, if your ex is an abusive asshole, and/or has been chronically absent from your kid’s life, there’s a chance that your kid won’t end up with them. The second best course of action you can take is to designate a preferred guardian in your will, carefully document every instance of assholeism/absenteeism you can think of, and make sure your preferred guardian has access to that documentation. That way, they can make the case to the court that the surviving parent sucks and shouldn’t be in charge of anyone. The first best course of action is: Don’t die. 

Q: How do I find a good attorney to take a not-slam-dunk medical malpractice case? 

A: Please forgive me for a little derisive laughter here. Ha! Ha ha! The question isn’t funny, but it exposes deep flaws in our civil justice system; the kind that I am helpless to do anything but laugh about. Not only will you not find a “good” attorney for something that you recognize as a “not-slam-dunk” case, but you aren’t likely to find an attorney at all. 

Medical malpractice is probably the least understood area of law in America. The commonly held misconception is that there are hordes of lawyers out there ready to sue doctors for even the slightest mistake. This misconception has been peddled and perpetuated by the insurance industry as a justification for jacking up doctors’ malpractice premiums every year. In reality, there just aren’t that many lawyers who can help victims of medical negligence. 

Pete Palmer, an attorney who previously handled both sides of medical malpractice claims for decades before becoming a mediator, explains that for lawyers representing patients, “It’s the hardest and most challenging legal work there is on the plaintiff side. The people you’re suing are sophisticated and often very sympathetic. Their lawyers are all excellent. They’ve got great resources, top-notch expert witnesses and will battle you at every level.” The cases are procedurally difficult, too, because state legislatures have put up barrier after barrier for patients trying to sue their doctors. Assuming someone can clear all the necessary hurdles and get a case to trial, juries don’t like to hit doctors in the wallet. Palmer says that during mediation, he reminds injured people that in his experience, “defendants win every trial they should, and probably at least half the trials they shouldn’t.”

Veteran trial lawyer Hans Poppe breaks down just how bleak the situation is in Kentucky: “Over the last 23 years, patients prevailed only 21.6% of the time in Kentucky medical negligence trials. In Jefferson County that win percentage drops to 16.4%. And when a patient does actually win, don’t expect a windfall —the average verdict is $505,292 and the median Kentucky medical negligence verdict is only $708,000.  In fact, 43% of the verdicts are less than $500k — and because med mal cases generally cost anywhere between $100k-250k to get to trial, only the best Kentucky plaintiff attorneys can afford to take one to verdict.” Worse, in some states, the amount of damages is capped, so even if you have an injury that, over the rest of your life, will take $20 million of around-the-clock care, the best you can get is, say, a $1 million — no matter what a jury wants to give you. 

In sum, you almost certainly will not be able find a lawyer to take on a medical negligence claim unless: 1) you are severely injured or dead, and 2) there’s a glaringly obvious mistake you can point to; one that anyone with a third-grade education can understand and condemn. Without those two elements, most lawyers can’t justify the considerable time and expenses those cases require. As Palmer puts it: “This leaves a whole subset of people who will have trouble finding competent legal representation,” even if they’ve suffered serious consequences from a serious mistake. So while it’s always worth setting up an initial consultation with a lawyer, or two, or ten, don’t be too surprised if you can’t find anyone to take a “not-slam-dunk” case. Even the slam dunks can be airballs.

Q: If corporations are people, why do they have such stupid names?

A: I’ll have you know that this question is considered offensive by people of America’s corporate culture, and we will name things according to our cultural traditions, thankyouverymuch. In fact, my first daughter’s name is Just a Got-Damn Miracle, LLC. The second one we affectionately refer to as FudgeCorp. Kindly do not submit any further inquiries.

As for the rest of you, if you have a question you’d like to see answered here, send it to [email protected], or send me a Facebook message, or a tweet (@dancanon). Remember: You get what you pay for. 

Thanks to Ben Lowry and Bruce Brightwell for additional input.