Posted by Bill Sandweg on 19 September 2016.
A common complaint I hear is from people who say that they have a good medical malpractice case but cannot find a lawyer who will take it. I understand their frustration. It seems to them that the system is unfair and broken and they are right. The system is both unfair and broken in the sense that victims of malpractice who have not been severely and permanently injured are pretty much out of luck; they cannot participate in a legal system which is very expensive and favors doctors and hospitals.
Last week I wrote about the difficulty jurors have in concluding that doctors and hospitals commit malpractice that injures people. It is because of this difficulty that doctors and hospitals win most of the medical malpractice cases that get tried in Arizona. And because jurors need serious and permanent injuries before they can find malpractice to exist, lawyers cannot take cases which lack serious, permanent injuries and strong evidence of malpractice.
We want to help people who have been injured by medical malpractice. However, I am not doing a prospective client a favor if I tell him or her that they have a case when they don’t have one which is going to be accepted by the jury. If we are able to take a case, we advance the legal costs associated with bringing that case. These are expensive cases. Medical malpractice cases require expert witnesses to prove the fault of the defendants and the amount of the damages. Expert witness are expensive. Each side will have its own set of experts, who will have to be deposed and who are often out of state. If there is a trial, we will have to pay to bring our experts to the courthouse to testify and pay them for their time out of the office. We typically write checks in a case for at least $75,000.00, and often considerably more, depending on the number of defendants. If we are not successful for our client, we don’t get reimbursed for those costs and are out the money. If we are successful, the client reimburses us for the costs out of the recovery.
In addition to the investment we make in the legal costs, we invest our time. The value of the time we invest is almost never less than $100,000.00. We usually charge a 40% contingent fee, which means that if we are able to make a recovery, we are paid 40% of the amount recovered and then are reimbursed for our costs. If we don’t make a recovery for our client, we don’t get paid for the time we have spent. It is important for us as a law firm to only take cases in which we are likely to make a recovery for our client. If are not careful about the cases we take, we will have to close our doors.
Regardless of how the math works for the lawyers, it has to work for the client too. As you can see from the discussion above, a client’s claim must have a jury verdict value of at least $400,000.00 before it makes economic sense for the client to go forward. Otherwise, the client may prevail only to see all or almost all of the money go to pay the legal fees and costs. These cases are supposed to be for the benefit of the client, not for the benefit of the lawyer, so that is not an acceptable outcome. There is also a risk of losing at trial and having to pay the legal costs of the defendants. Under Arizona law, the losing side at trial must pay the legal costs of the winning side. Although these costs do not include all of the costs we invest, they are substantial nonetheless and are usually at least $30,000.00 and potentially much more. The losing side must also reimburse the county for jury fees, which, in a two week trial, will usually be at least $5,000.00.
Prospective clients also often say that they do not want to go to trial and want me to just get them a settlement. Unfortunately, it is a rare medical malpractice case in which the defendant and his or her insurance company is willing to even think about settlement until suit has been filed, experts have been hired and all of the expert witnesses and parties have had their depositions taken. We cannot take a case we are not prepared to try if the defendants refuse to make a fair settlement.
The bottom line is that there are few medical malpractice cases in which Arizona jurors are willing to make an award to the injured patient. As a result, a competent medical malpractice attorney must be careful, for his or her own sake and for that of the client, not to take a case which does not have a good chance of being one of the few cases which can win at trial. There should be a better way, one which inexpensively and quickly recognizes those who have been injured by medical negligence and which compensates them for their injury. That better way does not exist today and, until it does, we will continue to assist injured victims as best we can.
