Despite propaganda from the insurance lobby and medical societies of a “medical malpractice lawsuit crisis,” the truth is that the vast majority (over 95%) of cases of medical malpractice never result in lawsuits or claims against the negligent doctor or medical institution. Although a person may clearly have received substandard medical care resulting in an injury, he or she may still be unable to find an attorney willing to accept the case. The question is, why?
There are many reasons why an experienced personal Injury attorney will not accept certain cases of medical malpractice. Because of the time (usually years) and money (many thousands of dollars) that must be invested in these cases, attorneys must be convinced you have a winning case and that the potential “reward” (a jury verdict or settlement to compensate for your injury) justifies the substantial “expense” (monetary, time, risk of defense verdict).
Most attorneys consider four major factors when deciding whether or not to accept a new case:
- Factual components of the case: What occurred? How clear are the deviation(s) from the standard of reasonable medical care? How simple or complex is the theory of liability? (Liability)
- Causal relation between alleged negligence and injury: How clear is it that the negligence caused the injury? (Causation)
- Monetary value of the injury: What would a jury likely consider fair compensation for the client’s injury? (Damages)
- Assessment of the client: How is a jury likely to perceive the client? (Likeability)
To shed more light on why a medical malpractice case is rejected, you must understand the complex process lawyers go through to make this determination.
What do you think happened and why.
First and foremost, we gather the facts. We need to know exactly what occurred from your point of view. If you have kept notes, pictures, or any type of written journal of what took place, this is extremely helpful. When you first speak or meet with us, we are evaluating you as a potential client, but also as a witness in your case.
We review all medical records.
If we decide to investigate your case further, we will examine all of your medical records, not just the records pertaining to your injury. Before we put hundreds of hours and thousands of dollars into a case, we need to feel confident that we have examined every possible detail of your unfortunate circumstance. We do not want to leave any part of your medical records out because the slightest detail showing up later can sometimes be enough to lose a case.
Experts review your records.
We always have records evaluated by highly experienced, well-credentialed medical professionals to help determine if a medical malpractice case is a strong one. These experts are very expensive. A malpractice case will never win without expert testimony from reliable, credible sources. Experts we call on are skilled and experienced in the same field as the physician or medical staff who may have been negligent in your case. By going through this evaluation process, we can better determine whether the medical staff deviated from what they should have done, or failed to do something that could have prevented your injury.
Review records with experts to ensure, not only liability, but also causation.
To win a medical malpractice case, it is not enough to show that the doctor or other medical professional deviated from the standard of care. We must go beyond this measure and also prove causation. This means that we must prove that the mistake the doctor made is the direct cause of your injury. If the same injury would likely have been sustained with proper medical care, or if the negligence did not cause your injury, then you have no case. Even if the expert thinks that the doctor made a mistake, this is usually not enough.
Consider the potential value of your case vs. the expense
We must have a preliminary, sound idea of the value of a medical malpractice case in order to determine whether — even if you win your medical malpractice case — you will be left with reasonable compensation for your injury after attorney’s fees and expenses. We would never accept a medical negligence case where it is likely that the client would end up with virtually nothing after attorney’s fees and expenses.
This process takes time.
Another reason why an attorney may not accept your case is that you have waited too long to speak with an attorney. Each state has its own “statute of limitations” — the time period in which you must file a lawsuit, or else you are forever barred from doing so. In Illinois, the statute of limitations in medical malpractice cases is 2 years, but there are many exceptions that may apply. The medical record review process takes months, so an attorney will be more receptive to considering your case the earlier you see him or her.
Because of the sophistication and difficulty of medical malpractice cases, you need an attorney with experience and knowledge to handle these types of cases. If you would like to discuss a case of potential medical malpractice resulting in serious injury or death, call the top-rated medical negligence lawyers of Passen & Powell at 312-527-4500 for a free consultation.
