Posted by Bill Sandweg on 24 May 2021.
Last week I began the discussion of the necessary elements of an economically viable medical malpractice case with a review of the standard of care issue. This week I will address the remaining elements.
Proving a breach of the standard of care is only the first step in a successful medical malpractice case. After proving a breach of the standard of care, you must prove that you were injured as a result and that your injury would not have occurred in the absence of the breach of the standard of care. This is another area where the defendant provider has a big advantage. How is that so?
You are being treated by a medical provider because there is something wrong with you. You have a medical issue. These issues are frequently complicated. The provider almost always argues that whatever happened to you was going to happen anyway or had already happened or was just a bad result that was no one’s fault. In addition to your expert on the standard of care, you must produce one or more experts to testify that the breach of the standard of care caused you an injury. The defendant will also get to bring to court one or more experts to testify that the defendant’s conduct did not cause the injury you are complaining about.
All these experts cost money. If a case has multiple defendants, the plaintiff will need to hire multiple standard of care experts and perhaps multiple experts to testify on medical causation. In the simplest cases, the cost of experts and depositions runs at least $35,000. Many cases easily exceed $100,000 in costs.
If I take your case, I will advance the costs. If I am successful in getting a recovery for you, I will first subtract my fee, which will usually be 40% of whatever I recover. I will then reimburse myself for the costs I have advanced. If I am not successful, I get no fee and will not ask you to reimburse me for the costs I have advanced.
In the event of a settlement, which is what you should want to happen, each side bears its own costs so your costs come out of your recovery. Let’s assume a simple case with a $100,000 settlement. After deducting the fee of $40,000 and reimbursing costs of $35,000, there is only $25,000 left for you. If the costs are higher, there is even less for you.
If the case does not settle and goes to trial, your situation is different. In the first place, doctors and hospitals win 85% to 90% of all cases that go to trial, even when the facts for the victim are strong. Doctors and hospitals win so often because juries find it difficult to accept that doctors and hospitals kill and injure people. If you lose at trial, you will owe the defendant provider its “taxable” costs. These are a subset of actual costs but will usually be no less than $20,000 and can be far in excess of that. You will also owe the county for the fees it paid to the jurors. Depending on the length of the trial and the number of alternate jurors, this amount will usually be between $5,000 and $10,000. In the event you win at trial, the defendant will owe you your “taxable” costs, which will mean more money for you in addition to the money awarded by the jury for damages.
As you can see, a case with a settlement value of $100,000 does not make economic sense. Unless a case has a probable value in excess of $300,000, it is difficult to justify the costs which will have to be invested and the risk that you will end up owing the defendants and the county many thousands of dollars.
Prospective clients often tell me that they don’t really want to go to trial. They are sure that whoever harmed them will want to make a quick settlement. They are almost always wrong.
Doctors and hospitals have liability insurance to pay for any cases they lose. The insurance policy for a doctor usually gives the doctor the right to consent to settlement. If the doctor won’t consent, the insurance company cannot settle the case, no matter how badly it may wish to settle. Since any settlement results in the doctor being reported to the Medical Board, doctors are understandably reluctant to give consent. Many of them are also offended that you would even think of suing them after all they did for you. Many refuse to give consent out of a belief that they didn’t do anything wrong and are likely to win at trial. Even if the doctor gives consent, the insurance company will almost always want to play hardball and to delay resolving the case to put as much pressure on you as they can. They know that if they go to trial, they are likely to win. They also want to discourage future suits, so they stonewall plaintiffs. When they do finally get around to settling a case, they offer only small amounts in settlement.
The only way to tell if your case is one which makes economic sense, that is one in which the potential recovery exceeds the risks of filing suit, is to take your case to an experienced medical malpractice attorney. The attorney will review your records and evaluate the injury you suffered. He or she may send your records out to a provider in the same specialty as the potential defendant. If the standard of care reviewer is prepared to testify that the provider fell below the standard of care, the attorney may send your records to other experts to get opinions about medical causation and future damages. The attorney will do everything necessary to determine if your case is one which makes economic sense for you and for the attorney. Everyone has to be on board and have a good understanding of what the attorney is going to do and the chances of success.
Unfortunately, most of the people who contact me do not have an economically viable medical malpractice case. There may be many reasons but the most common is that the damages are not large enough to justify the investment of time and money the case would require. It is a sad commentary on our civil justice system that only people who suffer big injuries can afford to sue. Those who suffer small injuries or who make a good recovery from their injury will not usually be able to find a qualified medical malpractice attorney to represent them. Fairness would seem to require that even those with small injuries caused by medical malpractice should be compensated for those injuries. Sadly, that is not how our system works.