Posted by Bill Sandweg on 06 March 2023.
If you have been injured by medical malpractice, you have a very difficult road ahead of you. In the first place, you are going to have to figure out, usually on your own, that you have been the victim of malpractice. Then you have to find a good attorney, who is experienced in malpractice cases and who is willing to take your case. As I have discussed on this blog before, there are many good reasons why an attorney may not be able to take your case, even when you have been malpracticed upon. At our firm, I am able to accept only about one out of every one hundred cases that come to me, even though many of the people I must turn down have been victims of malpractice.
One of the reasons I sometimes have to turn down a case is that there are so many possible defendants that it is difficult and extremely expensive to figure out who is at fault. The more doctors you sue, the harder the case is to prove and the more expensive it will be. Another reason I may not be able to take the case is that the client may have made a pretty good recovery from the malpractice. In my experience, no matter how bad the hell you went through due to malpractice, if you have made a pretty good recovery, the jury will not make an award to you. Or there may be too many other medical conditions involved. The more medical conditions a client has, the easier it is for the defense to argue that whatever happened was related to the other medical conditions and not to any conduct by the defendant. Sometimes, the injury may be what is called a risk of the procedure. This means that the injury can occur even if everyone does everything right. When the injury is a risk of the procedure, it makes getting a recovery from a jury even more difficult.
Medical malpractice cases are so difficult for a number of reasons. Doctors and hospitals win 80-90% of all cases tried in Arizona. One of those reasons these cases are so difficult to win is because of the Arizona legislature. The legislature has been run by Republicans for many years and it is a matter of Republican political orthodoxy that medical malpractice cases are mostly frivolous attempts to extort money from good doctors. Our Arizona Constitution prevents the legislature from capping the amount of money a malpractice victim can recover as many other states have done or from prohibiting certain types of cases. As a result, the Arizona legislature has passed a number of laws that apply only to malpractice cases and that make it hard or expensive or both for a victim to win in court.
The jury system is another reason it is hard to get justice for medical malpractice victims. Juries want to do the right thing but they have been bombarded for years with stories about personal injury plaintiffs who ask for millions in compensation when their injuries were actually their own fault. Insurance companies, corporations and the business community have done an effective job publicizing these stories when they occur and creating fake ones when there are not enough real ones to publicize. The McDonald’s coffee cup lady is a true story they never tire of discussing, even though she suffered a real injury as a result of some carelessness by McDonalds and the legal system reduced her jury award to a relatively small number. One of the fake stories they circulate is about a burglar who somehow gets into the garage of a family on vacation and cannot get out. He is forced to live on candy bars and soda he finds in the garage until the family returns from vacation. He then finds a shady lawyer to represent him and sues the family for wrongful imprisonment. The theme is “Can you believe it?” The subtext is that most claims are like that and these people with their hands out should not be rewarded.
It is also difficult for jurors to believe that doctors and hospitals kill and injure people. It is easier and less threatening to believe that the injury was just one of those things or that somehow the patient brought this upon herself. If you are catastrophically injured and need the jury’s help going forward with your life, you may be able to convince the jury to find in your favor. If not, it is just easier for them to find for the doctor.
The saddest thing about all these obstacles that prevent victims of malpractice from receiving justice is that there is so much medical malpractice out there. Hundreds of thousands of Americans die each year as a result of malpractice and far more are seriously injured. If you think you are one of these victims, find a competent, experienced malpractice lawyer and let him or her look at your case. It may be a long shot but you owe it to yourself and your family, especially if you have been badly injured.