I often receive calls from potential clients who want to know whether what happened to them or to their loved one constitutes medical malpractice and whether they can bring a valid claim in court. Most of the time these potential clients are legitimate victims of medical malpractice. However, I often have to turn down the calls that I receive. Why? While it is a somewhat of a sad state of affairs, the answer is economic. The following examples should help to illustrate the problem.
Cases Where There Is Not A Permanent Substantial Injury
For example, consider the case of an injury victim who goes in to have a surgery after their hand is injured in an industrial accident. Say that the surgery is performed negligently and the client ends up with the hand being even worse than it was before the surgery. This is probably medical malpractice. However, say that the patient has a second surgery a week later which then repairs the hand back to 100%. Now, let’s say that this individual calls my office wanting to know if he has a case. How would I evaluate the situation?
Although it may be undisputed that the first surgery was a significant and clear instance of medical malpractice, the case I just described is a case that I would probably not take. “Wait a minute,” you may say, “Why would you not take the case? The surgery was negligently performed, the doctor made the hand even worse, the malpractice is pretty clear.” Let’s consider the potential damages and recovery in this case.
As a result of the negligent surgery, the patient had to undergo a second surgery to properly repair the hand. Chances are the patient also had pain and suffering during the week between the two surgeries and he may have had to miss some time from work. Let’s say that the second surgery cost $7,000, that the patient had $500 in lost wages during the week he was out of work (there will be no future lost wages), and he is owed $2,500 in pain and suffering, bringing the total amount of damages to $10,000. “Not a bad chunk of change,” you say, “Why not file the lawsuit?” The answer: soaring medical malpractice case expenses.
In medical malpractice cases expert testimony is almost always required, and this case will be no exception. I will need to hire a doctor to review the entire medical chart of the patient, paying particular attention to the surgical notes and other documentation concerning the first surgery. Hiring a doctor to do this will likely cost several thousand dollars, and that is just for him to review the medical records! Then, it is likely that the defense lawyer will want to take the expert doctor’s deposition. These depositions can often drag on for several hours, and doctors usually charge many hundreds of dollars per hour for their deposition. Then, there is the actual trial where doctors charge even more per hour for their time, and so far I have only discussed the case expense of the expert witness!
There are other untold expenses that go into preparing for a medical malpractice trial. Everything from court costs to digital document exhibit preparation can make trying a medical malpractice case very, very expensive. Suddenly, I am running the risk of having spent more money in retaining experts and preparing for trial than will ultimately be recovered at the end of the case (not to mention the time and effort that could have been expended elsewhere). As you may be beginning to see, I will not be able to stay in business if I continue to take on these kinds of cases!
Cases Where There Is A Permanent And Substantial Injury
The previous example would be completely different if the victim’s hand was seriously damaged during the first surgery in such a way that it was not capable of being repaired, i.e., a permanent irreparable injury resulting in total loss of use of the hand. In that type of case, I have a plaintiff who had an injured hand which was negligently “repaired” by a doctor such that the hand is now beyond any hope of ever functioning again. It is likely that the client’s wages will be affected for the rest of his life, and his compensation for lifelong pain, suffering, and mental anguish will be off the charts. Suddenly, the value of the case has increased significantly. Adding up the pain, suffering, mental anguish, and lost wages for the rest of the client’s life, we are now potentially looking at a multi-million dollar settlement or verdict. This has become a case that I can invest resources in without running the business into the ground.
An ideal medical malpractice case is one where a healthy patient goes in for what should be a routine operation or procedure and comes out of that operation or procedure with a significant and permanent bodily impairment that cannot be repaired and will result in significant struggles throughout the rest of the victim’s life. Also, a case in which such a patient does not survive the operation or procedure, while a terrible tragedy, obviously has the potential to be a strong case of medical malpractice. Although potential clients are few and far between who meet the “ideal” standard, clients who come close to meeting this mold are the clients who present the strongest cases, and they are the clients that I am most likely to represent. The following checklist should help you to assess whether you have a medical malpractice claim that Iwould be willing to accept:
- patient was relatively healthy before the medical care was given.
- there is a clear indication of what the standard of care was.
- there was a clear breach of the standard of care.
- resulting injury/damages.
- injury is significant.
- injury is permanent.
- there was no pre-existing injury to the same area of the body.
- medical expert willing to give expert testimony about standard of care and breach.
- statute of limitations is not about to run.
Again, while each lawyer may have his or her own criteria to evaluate cases, this is the criteria that I use. The bottom line is this: although each case is unique and I am always willing to listen, unless there is a significant and permanent injury or fatality as the result of medical malpractice, chances are the case is not one that I will be able to take. In fact, I estimate that we turn down 90% of the potential medical malpractice cases that I consider. Is this fair to the countless victims of medical malpractice who will go uncompensated? No, it is not. However, it is an unfortunate economic reality, and it is the reason why so many medical providers are never held accountable for so many of the mistakes that are made in their office and in the operating room.
If you have questions about any of the legal issues raised in this blog, contact Dodosh Law Offices, LLC at (440) 298-2344. Or, you can fill out a contact form and Attorney Dodosh will get in touch with you.