DETERMINING WHETHER YOU HAVE A CASE
There are many factors that affect whether a lawyer will accept your case. First, despite what you may read in the newspapers, a medical malpractice case is not a guaranteed lottery ticket worth millions. Medical malpractice cases are perhaps the hardest types of personal injury cases to win. The doctor wins most cases that go to trial.
Since most cases take years of litigation, the cost of preparing and presenting the case through trial is a major factor in whether a lawyer will accept your case. Medical malpractice cases are taken on a contingency fee. When the case is resolved, the lawyer is reimbursed for his or her expenses and paid a percentage of the award or settlement as the fee. (See Chapter 3 for a discussion of contingent fee arrangements.)
These cases are very expensive to pursue because they require the lawyer to gather the medical records and hire medical professionals to review the records, write reports, and testify as expert witnesses. The lawyer must also pay the costs of pretrial preparation and trial. It simply does not make sense to pursue a case that has a potential value of $50,000, if the estimated cost of pursuing and presenting the case is also $50,000. Consequently, many smaller cases are not pursued, even if the negligence and causation is clear.
If the case is particularly difficult, the attorney may ask the client to put up at least some of the costs of the suit. This makes the case more economically viable for the lawyer. It also causes the client to feel more invested in the process and show the lawyer that the client is committed to the process. If the case is quite strong, the attorney may be willing to front the costs him or herself. If not, you should interview other lawyers.
Do not expect the case to settle quickly-it will not. Most of these cases must be tried before a jury. This is primarily because, in many states, the doctor’s insurance company cannot settle the case without the express consent of the physician. Since it is not the doctor who actually pays any judgment, the doctor has little risk if the case actually goes to trial. The doctor may want to preserve his or her reputation for providing quality care, rather than accept a settlement that implies malpractice. The doctor’s concern for his or her reputation is especially relevant in states that have open records on malpractice cases.
In assessing whether a case is winnable, the lawyer considers a number of other factors. The lawyer evaluates whether there actually was a breach in the standard of care that caused or increased the risk of harm to the patient. Equally important is the lawyer’s ability to present proof of the negligent conduct at trial. If credible proof is not available, the case is likely not winnable.
The patient’s medical records typically serve as the primary proof of the facts of the case. Medical records are often seen as more credible than the patient’s testimony. Consequently, even if you allege a clear case of negligence, if the facts are not documented in the medical records, the lack of documentation may persuade the jury that there was no negligent conduct.
Occasionally, a question will arise as to whether key medical records were altered or crucial entries deleted. It is not unheard of for medical professionals to alter or delete records in order to attempt to prevent documentation of malpractice. This is, of course, unethical and illegal. If discovered, there is a greatly increased chance of settlement since the insurance company will fear a very large jury verdict.
This is another reason for hiring an expert to review the records in malpractice cases. It would be extremely difficult in most cases for a layperson to detect a missing or altered record. In some states, if it can be proven that medical records are missing or were altered, an inference is created that the missing or altered records contain information that is adverse to the physician.
Age may also be a factor in whether the case is economically viable. Although this may not seem fair, the law does not value the life of a 90-year-old the same as the life of a 20-year-old. When a jury is considering an award for a permanent injury, a younger plaintiff has to endure that permanent injury for more years than a senior citizen. Thus, the award should be higher, all other things being equal. The older a person is, the less likely the case has enough value to pursue.
In some states, damages for pain and suffering, loss of consortium, and other noneconomic damages are capped-that is, the defendant will not have to pay more than a legally set limit, regardless of the size of the jury verdict. There are states where the cap is so low that it is not economically feasible for an attorney to accept a case under a contingency fee arrangement, even if the malpractice is obvious and the injuries severe.
This is often problematic with a 90-year-old plaintiff, a homemaker of any age, or an unemployed plaintiff. Since there is no claim for loss of earnings in these cases, the capped non-economic damages are the primary losses. For example, if an elderly plaintiff dies because of medical malpractice in a jurisdiction where noneconomic damages are capped by law at $100,000, the costs the attorney will have to pay to prepare the case properly for trial may also approach $100,000. The attorney here has no financial incentive to take the case.
Contrary to popular belief, extraordinarily large awards are rare. They typically involve catastrophic injuries requiring a lifetime of medical care and expense. If the injury is only temporary or if the injury does not result in any impairment or disability that lasts a significant period of time, the value of the case to the lawyer may not be sufficient to make the claim worth pursuing.
