Medical malpractice cases: Chances of winning

Medical malpractice is a bigger problem than most people want to admit.

According to a study by Johns Hopkins University, more than 250,000 people in the U.S. die every year from medical errors and negligence, there are around 85,000 medical malpractice suits in the United States every year, but although a lot of people think they were wronged by their doctors and they try to take them to court, chances of winning malpractice suit against the doctors are slim.

Chances of winning malpractice suit

Why chances of winning malpractice suit are so slim can be understood if you take a look at what a lawyer Jennifer Ellis responded on Qoura after someone asked „Can you sue a doctor for a misdiagnosis?“

She claims that juries do not like to penalize doctors, and frequently, will not. As she explains, most of the time, if a doctor makes a mistake, it is not malpractice. It is simply a mistake. Doctors are not gods, after all and we cannot ask the impossible of them.

As she explains, there are specific requirements you must meet to show that a doctor or hospital was negligent. They are:

„The doctor/hospital had a duty of care to you

They breached that duty by violating the medical standard of care

In doing so they caused you damages“

As Ellis explains, in a wrong diagnosis case, you must be able to show that the delay caused by the failure to diagnose resulted in injury. Remember, you were already ill or injured. The doctor is not responsible for that. The doctor would only be responsible for additional harm that could have been prevented but for the doctor’s violation of the medical standard of care.

For example, let’s say you went to the hospital because you fell. The hospital fails to perform x-rays and tells you that you sprained your wrist. You should go home, ice it, and follow up with your own doctor. A day or two later, you go to your own doctor. Your doctor sends you for a x-ray and you are properly diagnosed. It is very unlikely that you have a case because it is very unlikely that your injury was made substantially worse, added Ellis.

As she claims, most missed diagnosis cases will have a substantial period of time between the failure to diagnose and the time of diagnosis. Otherwise, there is rarely enough additional damage to bring a suit. Lawyers often see them in breast cancer cases. Let’s say a woman is complaining of symptoms that suggest breast cancer. She also has numerous risk factors for breast cancer. The standard of care would be specific tests. The doctor fails to perform them and tells her that she has X. This goes on for a year. The patient goes to another doctor who diagnoses her. In addition, due to the delay, instead of just having a small tumor removed, she has to lose an entire breast. Or even worse, her chances of survival have been decreased substantially. Or maybe she actually dies. This is a common scenario for a missed diagnosis or a wrong diagnosis case, wrote Jennifer Ellis on Qoura.

Although misdiagnosis or delayed diagnosis is by far the number one reason for malpractice claims, there are other reasons patients decide to sue their doctors like surgical or medication errors but very few people were successful in winning compensation for malpractice.

One survey, conducted by among readers of Lawyers.com website across the U.S. who had medical malpractice claims showed that only 12% of readers received a payout (in the form of an out-of-court settlement or an award after trial). These results are in line with other studies of medical malpractice. An analysis of research into medical malpractice by the U.S. National Institutes of Health revealed that 80%-90% of medical malpractice claims were dropped or dismissed without the patient receiving compensation.

There are several reasons why so many patients lose or just give up on their medical malpractice claims, including tight deadlines and procedural hurdles, which can sometimes put pressure on lawyers causing them to make a mistake.

Find a lawyer for medical malpractice

As one Reddit user explains, he got a lawyer so he could sue a doctor for medical malpractice, but the lawyer filed the lawsuit against the wrong person and by the time it got cleared up the statute of limitations was up.

„I was the victim of what I believe to be medical malpractice. I had free consultations with three different medical malpractice lawyers and they all said I had a case. I chose the one whom I believed was the best and he took my case on contingency. That turned out to be a mistake because when he filed the paperwork, instead of suing the male doctor who made a mistake during the surgery I had here in California, he sued a female Canadian college student who is not a doctor and has never been outside of her home province. They had the same first name and a similar last name but beyond that I have no idea how my lawyer could have messed it up so badly. The student had to take a loan to pay a lawyer to get it cleared up and by the time that this happened the statute of limitations for me to file a lawsuit against the correct person, the doctor who performed surgery on me, had passed“, wrote this Reddit user and the only advice others could give him was to sue his lawyer for malpractice.

Sometimes people just do not have the money to pursue their medical malpractice claims or they do not have the money to even hire a lawyer. Then they even consider going to trial without an attorney, after all  every year, millions try to navigate US courts without a lawyer, but when it comes to a medical malpractice case you would be so out of your league that you’d make headlines across the US if you successfully sued a doctor as a pro se litigant.

Statistics from US Courts shows that when the plaintiff tries to pursue a legal case alone, without a lawyer and the other side has lawyered up, the plaintiff wins about 4 percent of the time and this is overall trial statistics, medical damage suits require technical knowledge that no pro se litigant is likely to have.

One of the notable examples illustrating this is when Lenton Brown sued Kindred Nursing Centers East for medical malpractice after the death of his father, but he lost because he did not follow the special pleading requirements.

Perhaps better option was to find a lawyer who specializes in that sort of thing and agree to a contingency fee. When a lawyer uses a contingent fee, the lawyer’s entire fee is paid as a percentage of the award or settlement in the case.

That seems to be the popular method. If you lose, a lawyer loses a lot of unbilled hours; if you win, he gets his expenses and a percentage of the judgment, meaning this would lead to lawyer being more careful wih your case.

This is a reason why lawyers will not take your case, studies show that nine of 10 patients seeking a medical malpractice attorney won’t find one —  women, children and the elderly in particular.

Medical malpractice cases are some of the most expensive and risky cases a lawyer can handle. Not only does the lawyer have to learn and understand the medicine as well as a doctor, but he must invest a tremendous amount of skill, time, money and effort to be successful with these cases.

If an attorney won’t take your case, then you most probably should not pursue it.

A patient who pursues a medical malpractice case without a lawyer can spend up to tens of thousands of dollars.

He will have to pay the costs of the lawsuit up front.

As Alllaw explains,  It usually costs between $100 and $500 just to file a lawsuit. The patient should also expect to have to pay a fee to whatever hospitals or doctors are in possession of the medical records in the case (for copying or other transfer of the file). These fees vary depending on how many pages of records exist.

Aside from the hours you’ll likely spend familiarizing yourself with your case, crafting a strategy, and figuring out how to comply with court procedure, the largest monetary expense will probably come in the form of expert witness fees. The size of these fees varies significantly based on the experience of the witnesses, number of experts required, and the amount of work that will be required. As a general rule, you should expect the total expert witness fees to be in the tens of thousands of dollars. When you combine that with the slim chances of winning, you understand why there is no point in going to trial without an attorney.

Cost of a medical malpractice case

When hiring an attorney, a patient and a lawyer agree on their split of possible winnings.

The contingency fee charged is usually at least 40% of the total recovery, but for example let’s say  you and your lawyer agreed on a 33% contingent fee, with the lawyer shouldering the costs of litigation, in the event that the litigation is successful, the costs will come out of the award first. Assume the case settles for $100,000. The costs of the litigation were $10,000. In such a case, the lawyer would be reimbursed for the costs of the litigation out of the settlement money, leaving $90,000. The lawyer would then take the contingent fee of $30,000. The patient would be left with $60,000. Most experienced medical malpractice attorneys typicallly invest between $30,000 and $70,000 of their own money per medical malpractice case, according to  Medicalmalpracticelouisiana.com.

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