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When medical malpractice isn’t medical malpractice: Why doesn’t anyone want to take my case?

· DISCLAIMER – this is only meant to be a general discussion to aid in understanding the subject matter and should not be regarded or construed as legal advice. You should always consult with a professional before making any important decisions or with any specific questions.


February 17, 2020


When medical malpractice isn’t medical malpractice: Why doesn’t anyone want to take my case?


Introduction

People come to attorneys after suffering from what is often horrific negligence that they or their loved one suffered at the hands of a doctor, nurse, hospital or other medical provider. They bring with them a story of a terrible mistake, the accompanying anxiety of hoping that the mistake can be corrected, and expectation that the attorney can help them hold that medical provider responsible for their negligent act. More often than not, they are disappointed, if not downright shocked, that the attorney, even one who specializes in medical malpractice, tells them that they will not take the case. How could this be? Surely the experienced attorney can recognize that this is a case of malpractice, and malpractice cases can be very lucrative, so why is the attorney turning it down? Not only that, they soon learn after meeting with several other medical malpractice attorneys that none of them are interested in taking their case. What gives?

Elements of Medical Malpractice

Medical Malpractice is a highly specialized area of the law that deals with negligence by a medical professional. However, “negligence” for purposes of medical malpractice is not defined as it is in general tort law. In general tort law, negligence is broadly defined as the failure to use reasonable care. In Medical Malpractice, negligence is defined as a deviation from the accepted standard of care. What is the accepted standard of care? That depends on many factors. What was done / not done? What was the specialty of the medical provider? When did it happen? The standard of care is not a clear red line, it is something that changes as medicine changes, and is really unique for every case.

The second element of any Medical Malpractice case, just like any other negligence case, is damages. Simply put – what happened as a result, how did the act (or omission) of malpractice affect the person that suffered it? What was the harm?

Considerations in deciding whether to take the case

As we mentioned above, the potential client, be it a patient or the family of a patient, is often upset with the medical provider, perhaps rightly so, for what happened and wants to hold that provider accountable. However, as I always explain to any potential client whether they come in with a claim for medical malpractice or any other negligence case (a motor vehicle accident, a slip and fall case, etc. etc.) – all I can get for you is money. The money wouldn’t be coming from the medical provider’s pocket, but from his insurance company. So it might make the medical provider’s rates go up (they are high enough already) but that’s about it. If it’s punishment you’re looking for, professional discipline, then you need to take it up with the state regulating agency. They might investigate the matter, and they might find grounds for imposing sanctions or other discipline on the provider, but what they can’t do is get you any money. That’s what you come to an attorney specializing in Medical Malpractice for.

Unless you want to pay your attorney by the hour, including a retainer of tens of thousands of dollars, you will likely agree to a contingent fee arrangement with the attorney. This means that the attorney will agree that he will not get paid directly by you, but will get a percentage of whatever you recover when you ‘win’ – when you collect on a judgment or settlement of your claim. If there is no recovery – the attorney doesn’t get paid. However, there is one additional element to the financial equation – the expenses involved in pursuing a claim for medical malpractice. These expenses can include the costs of obtaining records, filing fees in court, consulting with and hiring medical experts that can testify about the standard of care and whether the medical provider in your case deviated from it, and much more. These expenses can easily reach many tens of thousands of dollars, if not more. No attorney is going to want to take on having to face laying out such significant sums unless he can expect to recover far more. It’s a simple risk-reward equation.

When potential clients are given this explanation, they invariably claim – my case is a slam dunk! The liability is clear! They will want to settle right away! Think again. Yes, there are certain cases that the insurer will want settled right away, for whatever reasons, but those are extremely rare. For almost all medical malpractice claims, the insurer will engage in a war of attrition, forcing the claimant to undergo a very lengthy, arduous, expensive, often painfully invasive process, before being even willing to discuss any settlement. Any experienced attorney knows this and will factor that into his decision whether to take on a claim for Medical Malpractice.

Another frequent reason for turning down cases is the absence of any real damages. As we discussed above, there are two elements to the claim: negligence and damages. Sometimes, actually very often, there will be clear negligence but no real damages: the medical provider realized his mistake and fixed it. I recall an anecdote where a potential client came to me with a distressing account of undergoing back surgery, as she related it to me - something happened on the operating table and she died. She was clinically dead and they brought her back. She was extremely upset and crying, “I died! I died!” I could only respond, as heartless (excuse the pun) as it may sound, by telling her that she didn’t look dead to me. As I explained to her – even if someone committed such egregious malpractice that she died as a result, they fixed it right away, you didn’t even know it happened until they disclosed it to you afterwards. In other words – no real damages.

That was an extreme example, but there are many more of what we can call momentary damages: there is an act of negligence and it causes real suffering, but it gets resolved quickly, either by the negligent provider him/herself, or by someone else. For example, the anesthesia wore off too quickly, and the person felt horrible pain during a procedure, or a misdiagnosis that was quickly corrected. If the patient ends up in the same condition he or she would have been regardless of any malpractice, regardless of how much he or she suffered on a short-term basis, then the value of any momentary damages are likely not to be worth pursuing from the attorney’s perspective, given the considerable expenses that can be expected to be incurred in order to obtain any kind of recovery.

Even if there was malpractice, and even if there are permanent damages, the attorney may still not want to take the case. This is likely because again, the expected value of the damages – how much the attorney would think that the case is reasonably worth, is not enough to make the case worth taking. Potential clients are often surprised to hear this, as we all see in the news or on reports we see online cases that are settling or resulting in verdicts of if not millions of dollars, than at least in the hundreds of thousands of dollars. Well, these are the cases that make the news. Just like you aren’t going to read in the newspaper about your neighbor that settled a rear-end hit for $10,000.00, you are only going to hear about the most sensational cases. But when it comes to medical malpractice, there aren’t really any $10,000.00 rear-end hits. If the damages aren’t extremely significant, really catastrophic, more often than not the attorney is going to turn down the case.

So what kind of case is significant enough for the attorney to want to take the case? There are no clear guidelines but as we have seen, there are many factors that go into why an attorney wouldn’t take a potential case. There are many more factors of course, these can include the age and condition of the patient. There have been many times where families come in with a case where their loved one, very elderly and frail, was brought to the hospital and due to some negligence died while in the hospital. Here, the problem is the extent of the damages. As cruel as it sounds, the value of a case of someone who was ‘going to die soon’ or wasn’t enjoying any quality of life anyway, is generally too low to consider taking. There are also cases where the harm caused just isn’t significant enough – a small scar on an unseen part of the body, diminished sense of smell, a broken toe, etc. Here too, the value of the case just doesn’t make it worth taking.

Conclusion

We have reviewed here the basic parameters of what constitutes a medical malpractice case that an attorney will want to take, and what doesn’t. You might hear “you might have a case, but I’m not the right person for it” or invariably: “you might have a case but I’m too busy.” Generally, when an attorney isn’t going to take your case, he will not give you a detailed explanation as to why not. Don’t take it personally, the attorney has his (good) reasons for not taking your case, and does not want to have to debate the merits of your case with you. Hopefully, this discussion will help you understand why you are being turned down when you think you have a perfectly good case.

- Daniel B. Needle

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