Attorneys: What to Expect in a Medical Malpractice Case

A medical malpractice case can seem similar and even straightforward to litigators who specialize in other areas of personal tort. However, it is best to view medical malpractice cases as they are almost completely different animals than your average tort case. Here’s what to expect:

1) You should get a second opinion before you even take the case. Attorneys are usually not doctors, and in deciding whether a provider has rendered substandard care which can be proven to have caused damages adequate to make the suit viable, it is always a worthwhile investment to have a doctor, especially one who is also a lawyer, review the case from the start. They can size up the value of the case and give an opinion on potential pitfalls, defenses, and outcomes.

2) Expect to put a lot of resources in before getting anything out. Depending upon the volume of the medical records, the expert testimony that is required, and the level of damages that are involved, there could be extensive pre-trial discovery and expenses before anyone even steps into a courtroom. If you work on contingency, as most medical malpractice attorneys do, expect to make a sizeable investment before even getting close to settlement negotiations or trial. Again, having a doctor/attorney review the case before you even accept it can give you an excellent idea of what kind of investment may be required.  

3) Even then, it can be a tough fight. Tort reform remains popular and medical malpractice claims are routinely limited in recovery or by other jurisdictional issues such as statute of limitations, which vary from state to state. At least one commonly cited statistic asserts that more than 80% of medical malpractice claims end without any payment to the plaintiff or their survivors. Another statistic states that the rate of medical malpractice claims that are paid dropped from 56% from 1992 to 2014.

4) The rate of medical errors has not dropped that precipitously. The steep decline in the rate of paid claims is unfortunately not likely due to a decrease in medical errors. Behind heart disease and cancer, the third most likely cause of death in the United States is medical error. Between 2000 and 2008, one study found that deaths due to medical errors could make up at least 10% of all deaths each year in the United States.

5)The final determination will probably come down to a battle of the experts. In proving medical malpractice, having an expert to testify as to the standard of care that the medical provider owed to the plaintiff and as to how the medical provider breached that standard of care is only part of the battle as to sustain the claim, that expert and/or other experts must also testify that the substandard act was the proximate cause of the damages claimed.  To say that the jury will end up deciding a battle of experts is not far from the truth.

Given the prevalence of medical errors that lead to death or serious injury, medical malpractice suits remain the legal remedy for plaintiffs to obtain adequate compensation for the results of that error. Increase your odds of securing that compensation for the plaintiff by consulting with Dr. Mike Giordano, a practicing neurosurgeon and attorney; who will review your potential case with a physician’s knowledge and a lawyer’s interpretation. Contact him today to get started.  

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