It is not uncommon to receive a telephone call from a patient who is still in the hospital being treated for a serious condition, or has recently been discharged and is undergoing follow-up treatment. They may have been told by a friend or family member that they should “get an attorney immediately,” so they call you.

The advice I usually give is that it is premature to involve attorneys while they are still receiving care for the injury that was caused by possible medical negligence, whether it was a surgical error, medication mistake, or something else. I tell them to wait until they are “fixed and stable” and the treatment is completed, and then we can obtain all of the medical records and evaluate whether the facts give rise to a viable medical negligence claim.

I explain that, until we know what the long-term damages are, it is difficult to assess whether a claim should be brought. I also explain that if their current treatment doctors think an attorney is involved or a claim is being considered, it may result in the doctor being more cautious about what is put in the records, because doctors don’t like to have to testify in a malpractice lawsuit.

Usually, when I tell the potential client that there is a three-year statute of limitations, they are reassured that nothing needs to be done immediately in order to protect their legal interests. I often tell potential clients that they or family members should keep a simple diary or narrative of what they are going through, since memories will fade.

There are some exceptions to this advice. It is possible there are important fact issues that won’t be clear in the records and an early lawsuit may be needed in order for depositions to be taken while memories are still fresh. Or there may be issues of retaining evidence, such as removed surgical hardware or pathology specimens that need to be preserved. For example, manufacturers tell doctors to send back any failed medical implants or equipment, and an attorney may need to advise the doctor to keep such potential evidence rather than returning it to the manufacturer.