Posted by Bill Sandweg on 06 July 2020.
I had the opportunity recently to speak with a woman who believed she had been the victim of medical malpractice in connection with a repair of her hip. She had sent me a detailed description of what had happened to her, of her concerns about her treatment and of the limitations she was now experiencing as a result of the hip repair. I had reluctantly turned down her case and she wanted to know why. We had a good talk and, when we were done, she understood why I could not take her case. I thought it might be helpful to others to understand the analysis I have to do when presented with a potential case.
The first thing to keep in mind is that doctors and hospitals win 85% to 90% of cases that go to trial in Arizona. The success rate for doctors and hospitals is even higher, if your case has to be tried outside Maricopa or Pima counties. The first thing I have to do when I look at your potential case is ask whether it is likely to be one of those 10-15% that will be successful at trial. I do not do clients a favor, if I take a case that is likely to be one of those that will lose at trial. Not only do my clients have to undergo the stress of having a lawsuit pending for a couple of years, if we lose, the court will enter a judgment in favor of the defendants for their “taxable” costs. These “cost” judgments will usually be in the range of $20,000 to $30,000. This is no small amount, even for clients who have significant assets.
Sometimes potential clients say they really don’t want to go to trial and urge me to take their case so they can get a settlement short of trial. They are usually quite confident that the doctor or hospital will not want to take the case to trial and will offer a settlement. They are almost always wrong. Doctors, hospitals and their insurance companies know they have a high chance of success at trial, just as I do. For a case to settle, doctors usually have to give written consent to the insurance company. Since a settlement will result in a report to the Arizona Medical Board and to the National Practitioner’s Data Bank, both of which are black marks on the doctor’s record, doctors are reluctant to give consent to settle, unless the case against them is a strong one. I make it a practice not to take cases I am not willing to take all the way to trial. If I take your case, I won’t dump you on the courthouse steps, if the doctor or hospital does not want to settle. Since I am going to be making a large investment of time and money in your case, it has to be one I believe in and am willing to try on your behalf.
To be one of those cases, we are likely to win at trial, there must be clear evidence of medical malpractice. This sounds a lot easier than it is in actual practice. Very often what a doctor or other health care provider should do in a given situation is a matter of judgment, about which competent professionals can disagree. If competent professionals can disagree about what should be done, the doctor wins the case, if he or she chooses any one of the acceptable choices. No matter how clear you may think it is that the doctor made a mistake in your care, the defense team will be able to find someone to say that reasonable doctors could disagree and do it the way your doctor did. If the jury believes them, you lose.
It is not enough to have clear evidence of medical malpractice. you must also have a very significant, permanent injury. If the likely verdict in your case is less than $400,000, it is very difficult to make the case worth your while to pursue. If I succeed for you, and only if I succeed, I receive a fee for the work I have done. That fee is usually 40% of whatever I recover for you, either by way of trial or settlement. If I have to do an appeal for you, the amount of the fee goes up to 45%. If I succeed, I also reimburse myself for the costs I have advanced on your behalf. These are amounts I have advanced for filing fees, for costs associated with travel and depositions but mostly for the fees expert witnesses charge me to consult with me on your behalf or to give a deposition. The more defendants we have in your case, the greater will be the number of experts and depositions and the higher will be the costs. The costs can easily exceed $100,000. You can do the math yourself. In a case in which the recovery is less than $400,000, by the time my fee is paid and the costs are paid, there is very little left for the client. How is that fair to the client? I cannot accept a case in which there is very little chance of getting the client a fair recovery at the end.
There are many more factors I have to consider, too many to list them all in this post. Suffice it to say, I turn down over 100 cases presented to me for every one I am able to take. This is why I just shake my head every time I hear some doctor or some politician saying there are too many frivolous malpractice cases. In fact, the opposite is true. There is rampant medical malpractice but only those with strong evidence and a significant permanent injury are going to be able to find a competent, experienced lawyer to represent them. All those people who are injured by medical malpractice but who do not have strong proof or whose injuries are not severe enough are not able to get justice and I am very sorry about that. There ought to be a better way.