Smaller Plaintiffs Firms Benefiting From Others' Selectivity
Several attorneys at small and midsized plaintiffs firms say they are seeing more medical malpractice and serious personal-injury cases referred to them by their large firm counterparts because of those firms' selectivity in taking cases.
That selectivity—which some say is driven by the certificate of merit requirement, along with higher financial thresholds for access to court—does not mean that all small to midsized firms are seeing referrals.
Other lawyers, particularly those based in Pittsburgh, note that their business is not affected by cases passed down by large firms and take referrals only from previous clients.
Anthony J. Giosa of Philadelphia-based Giosa & Hetznecker said that his firm has seen more referrals recently because of large-firm selectivity.
"We get more calls lately from larger firms," Giosa said. "Larger firms are being choosier."
Giosa added that referrals make up a quarter of his firm's business.
Giosa opined that in addition to having certain financial thresholds, bigger firms are increasing referrals because of the volume of cases they receive due to their prominent advertising presence.
In deciding which referred cases to accept, Giosa said he will not touch a medical malpractice case unless it presents an issue of unequivocal liability, as those cases are among the most expensive to litigate. Giosa said he also looks for a case that has as few defendants as possible.
Eric G. Zajac of Philadelphia-based Zajac, Arias & Trichon also said that when some large plaintiffs firms receive cases that do not meet their minimum financial thresholds, they are sent to his firm.
"From time to time they get asked to get involved in a perfectly meritorious case, but may not have the economic value that they prefer," Zajac said.
"I have good relationships with very good lawyers at some of the bigger firms in Philadelphia. They have a business model that you have to respect, they target a certain case with a certain value."
Additionally, Zajac said that where a small firm cannot trump the advertising power of a larger one, it can benefit in terms of referrals by developing a good working relationship with a large firm.
Zajac recalled an example of a larger firm referring him a medical malpractice case that did not meet its profit requirements, which was later resolved for $500,000.
"That may not be meaningful to a large firm, but it is for a firm of my size," Zajac said.
He added that his firm is referred catastrophic injury cases as well, including birth injury cases and those that involve permanent disabilities or death, starting at the $250,000 range.
"Firms that have a business model like mine are seeing some of those cases," Zajac said.
Bruce Ginsburg of Ginsburg & Associates in Philadelphia handles medical malpractice cases, but said that the bulk of his referrals from larger firms include serious auto accident and nursing home negligence cases.
Ginsburg added that his firm's referral base is growing and is accepting cases from out-of-state firms in New York and New Jersey as well.
When a medical malpractice case does enter the firm's fold, Ginsburg said, "We look at damages first." Assessing whether to take on a case based on liability alone can sometimes be difficult, he indicated.
"Liability theories evolve often as testimony comes in. At the end of the day, as liability evolves, what was unclear sometimes becomes clear and what was clear sometimes becomes muddied."
In terms of large-firm referrals on the western side of the state, Jerry Meyers of Pittsburgh-based Meyers Evans & Associates said that things are different there than in Philadelphia.
Meyers said that in Pittsburgh, major medical malpractice and negligence cases are handled primarily by small boutiques that thrive on referrals from previous clients.
"The plaintiffs firms in Philadelphia have a tendency to be much, much larger," Meyers said. "The top malpractice lawyers in Pittsburgh are not affiliated with large firms."
Meyers said of his firm's financial threshold, "If we were to have a case that has a total value of $200,000 or $300,000 or the type of case that would incur $50,000 in expenses where the client's return would be trivialized, we won't handle that case."
In addition to being a physician, Deborah S. Maliver is a practicing medical malpractice attorney at Biancheria & Maliver in Pittsburgh.
Maliver said that she does not accept referrals from other firms and determines whether a case is worth accepting by establishing "if it is upsetting to me as a physician."
The scope of the cases Maliver said she takes on are those involving high damages and death or permanent injury. She added, "I would never take a case where I didn't think I was dead-on with liability."
Several lawyers also mentioned that the certificate of merit partially determines the flow of referrals from larger firms to smaller ones.
Zajac said that the certificate of merit requirement has played a significant role in the number of medical malpractice cases referred to his firm.
"I've been seeing more of them since the certificate of merit has gone into effect," Zajac said.
Giosa noted that "the larger firms, instead of holding onto a case for a while, have to go out and get an expert opinion. If they get an opinion they don't like, they'll now refer it, whereas in the past they would hang on to it for a while."
However, Ginsburg said that the certificate of merit has not greatly changed the number of cases referred to or accepted by firms across the board.
"Those cases are too technical and expensive to take on the fly," he said. "We've never gotten involved in any medical or nursing home case where we haven't already run it by an expert. In the cases where the experts don't like them, we don't pursue them."
Meyers added that it has always been common practice to consult experts before proceeding with a case; however, the number of medical malpractice cases overall has been reduced because of the certificate of merit.
"There has been an impact of the certificate of merit rule," Meyers said. "I think it has eliminated many cases that never should have been filed, because they were filed by lawyers who had little experience in those cases."