Lawsuit filings show that more and more patients are harmed by malpractice committed by their physicians or healthcare providers. The once common thought that doctors are infallible is no longer as prevalent, and media reports regarding negligence in the medical field are increasing patients’ awareness of their right to recover damages from health care providers who commit malpractice.
Why then is it difficult to find a qualified and experienced medical malpractice attorney willing to take on a malpractice case?
Recent results of a national survey conducted by Joanna Shepard, a law professor at Emory University, and presented in a January 2014 Vanderbilt Law Review article found that there are many reasons why malpractice attorneys reject otherwise viable malpractice actions. Those reasons included the following:
- Insufficient damages expected at trial (38.73%)
- Unclear evidence of malpractice (29.11%)
- Unclear causation (19.25%)
- Complexity and expense of bringing the claim (11.74%)
- Case is unlikely to settle (.94%)
- A hospital is not involved in the medical malpractice (.23%)
The survey findings make clear that economic concerns prevent most malpractice attorneys from deciding to handle cases. Medical negligence actions usually require multiple experts just to get a case into court, and in many cases, the cost of hiring these medical experts outweighs any potential recovery. Additionally, statutory limits on damages have also impacted many attorneys’ decisions to take on a case.
Of note, 75% of the attorneys who participated in the survey indicated that they reject more than 90% of the cases they screen due to insufficient damages and high litigation expenses. Moreover, the majority of attorneys reported that they have threshold damage values below which they will not even consider accepting a case. More than 50% of the attorneys reported that they will not accept a case unless expected damages are at least $250,000 – even for a case they are almost certain to win on the merits. For cases where liability is less certain, most attorneys reported that they require a minimum expected damages of $500,000 to pursue the case.
Another factor that contributes to attorneys declining to represent a plaintiff in a medical malpractice claim is that many times the prospective client initially contacts a lawyer who does not specialize in that area, and the lawyer sometimes waits too long to refer the matter to a seasoned medical malpractice law firm or doesn’t refer the case at all. By then, it may be too late to pursue the lawsuit because the applicable statute of limitations has expired.
So what should a person do if they feel their doctor or health care provider has committed malpractice? Seek the advice of more than one attorney and make sure that the attorney is one who spends all of his or her professional time in the litigation of medical malpractice claims. While some law firms may reject a case because it does not make economic sense for them to take it, another firm or lawyer may be willing to take on the lawsuit.
If you believe a doctor or healthcare provider’s professional negligence has injured you or someone you know, the medical malpractice team at Sommers Schwartz is here to discuss the facts of the case and take appropriate action.