Why Don’t I Have a Case? (Medical Malpractice Edition)

Lots of people are convinced that they have a great medical malpractice case. I get calls, emails, etc., from potential clients, even from fellow lawyers who do not handle medical malpractice.

Everyone thinks “This is a great case!”

But most of the time, it’s not a case at all.

Why not? Let’s talk about what makes a medical malpractice claim.

Analysis of a Medical Malpractice Claim

Medical malpractice is a subset of personal injury law. Just like other personal injury cases like a car crash or a “slip and fall” premises liability case, a “med mal” case has certain elements, all of which must be met for a successful claim:

• A “duty of care.” In the case of medical malpractice, it’s a duty to act as a reasonable practitioner would act in a similar situation; A breach of that duty. In other words, the doctor or medical professional did not act as a reasonable provider in their position would have;
• An injury caused by the breach of duty; and
• Damages resulting from the injury, such as medical bills, lost wages, pain and suffering, etc.

But medical malpractice claims also require a lot more.

You must also file, along with the case or soon thereafter, the affidavit of a medical expert. An affidavit is a sworn statement stating that the medical expert reviewed all of the medical records and that based on that review, believes , the standard of care was not followed and that caused the patient’s injuries

Yes, your case can be dismissed permanently without this document, called a“2-622 affidavit.”

The cost to have a doctor review a case is often nearly five thousand dollars, unless your lawyer handles so many of these cases that he or she has a team of experts at the ready for these reviews. That means the cost just to file a claim is high, and that’s before you even get out of the gate, so to speak.

There’s also the reality that medical malpractice cases rarely settle, so your lawyer must be prepared to spend five or more years of their life preparing for trial, get the case to trial, and then win at trial, all the while absorbing the astronomical costs that accompany a case that relies heavily on the testimony of experts (all of whom must be paid for their time).

Yup, your original reviewing expert is not enough to go to trial. Not even close. In one medical malpractice case I worked on, our side alone took over two dozen depositions, and employed over half a dozen expert witnesses, whose time and expertise are not cheap.

Assuming you can overcome that hurdle, here are more details on what you need to prove in a medical malpractice case.

Standard Of Care

In the most basic explanation, the standard of care in a medical malpractice case is defined as what a normally careful doctor or health care provider in a similar situation and place would be expected to do or not do.

Let’s take a classic example of preeclampsia, which can occur in childbirth, when the blood pressure of the mother threatens the life of the fetus and the mother. Careful monitoring is mandated, and, if vital signs reach a certain point or duration, a Caesarian section is performed. Failure to properly monitor the condition, or failing to perform the life-saving surgical procedure, can be malpractice.

And you’ll need an expert to define that in each case. Ka-ching.

Then, you most likely will require experts to prove that certain measures should (or should not) have been taken at a certain point. More money and risk.

Assuming you get that far, you then have to evaluate the damages for the presumably now born, but diminished, child. A whole host of experts would be required to establish the cost of lifetime care, the type of care, the likelihood of permanency, to name but a few.

In other words, even a great case will be tremendously costly, with lots of chances for things to go awry.

Damages and Causation

Many cases sound great at first.

I once had a case I wanted to take on. I worked with several well-known lawyers, with whom I collaborate regularly on these types of matters. A woman had a horrible MRSA infection developed during childbirth. The long and short of it was, her entire side from ankle to shoulder looked like Frankenstein. Hundreds of sutures left scars. Tissue was lost at such a volume that one leg was half the size of the other. Even with jeans on, it was visible and noticeable.

She stated the doctor wiped his hands on a dirty towel before examining her. It was a really terrible hospital. Everything made me convinced it was a great case.

But the medical records didn’t support her claim (not surprising), and there was simply no way to know where she picked up the infection from. Sure, we believed her and believed it was due to lousy conditions at the hospital.

But we couldn’t prove it.

Med mal is often not about what happened, but what can be proven.

Economics

Simple economics of cost-benefit analysis is the ruler of medical malpractice cases. As I said, they are risky, almost always go to trial (risky), and are very expensive. Even a relatively small case can cost six figures in costs and several years of time. And you might not win. Failing to win at trial means the attorney eats the costs. We sure aren’t going to bill the aggrieved client for that!

All this means some injuries are not “big enough” to justify a case. Sometimes people get badly hurt by a health care provider but they eventually recover pretty well. Or they have something happen and have to undergo another procedure to fix it. And that procedure fixes it, so there’s no further harm.

That’s the problem sometimes; as unfair as it seems, the injury isn’t big enough to justify a lawsuit. It makes no sense to t spend $200,000 and four years for an injury worth $20,000. That said, if you believe that you might have a medical malpractice case, it’s always a good idea to discuss it with an attorney.

If you do have a case, and you don’t file it within a certain time frame, you lose your right to pursue it. It’s better to talk to an attorney and learn whether your case is viable, than to assume it is not and risk leaving potential compensation on the table.

Takeaways

Contact Chicago Personal Injury Lawyer Stephen Hoffman

If you have been injured, whether by an auto accident, bike or pedestrian crash, dog bite, work accident, or medical malpractice, seek medical attention immediately. Report accidents to the police and your own insurance company, or to your employer if you were injured at work. Then contact a lawyer with experience in your type of injury matter.

If you have been in an accident and have questions, contact Chicago personal injury attorney Stephen L. Hoffman for a free consultation at (773) 944-9737. Stephen has over 35 years of legal experience and gets results; he has collected millions of dollars for his satisfied clients. He is listed as a SuperLawyer, has a 10.0 rating on Avvo, and is BBB A+ accredited. Stephen is also an Executive Level Member of the Lincoln Square Ravenswood Chamber of Commerce.

Stephen handles injury cases on a contingency fee basis, which means you pay nothing up front, and Stephen only gets paid if you do. You have only a limited time to file a claim, so don’t wait another day; contact Stephen now to get started putting your life back together.