WHAT MAKES A MEDICAL MALPRACTICE CASE WORTH PURSUING?
By Craig Knapp on July 13, 2019

Perhaps something troubling occurred to you or a loved one at the doctor or at a hospital: maybe cancer was overlooked and undiagnosed; maybe a surgery went horribly wrong; perhaps the wrong medication was administered. Afterwards, you might have looked around for a billboard for a Phoenix medical malpractice attorney, and not seen one. And then you may have wondered, “why aren’t there any billboards for medical malpractice attorneys? They are all for auto accidents!” And then you may have wondered, “what makes an instance of medical malpractice worth litigating against the doctor, clinic, or hospital? Do I have a case?”

We wish to give you an attorney’s perspective on these questions.

Litigation against doctors tend to be a long, expensive, complex, time-consuming process. Unlike some auto collision cases, a simple demand letter to a medical malpractice insurer is almost never going to effectively resolve a case against a doctor or hospital. Instead, these cases almost always have to be litigated. That means a lawsuit has to be filed. Depositions have to be taken. Expensive medical experts have to be retained. This all represents valuable time and extensive costs incurred on part of the law firm that has taken the case.

Attorneys specializing in medical malpractice, like Knapp & Roberts, make this enormous investment without any guarantee of recovery or full reimbursement. In this way, there is great risk in this particular specialty of law practice. This is the sort of risk that many lawyers do not wish to take on. To give a sense of how expensive some of these cases can be, in a typical medical malpractice approximately $100,000-$125,000 will be spent prior to the trial. If the case proceeds to trial, the expenses will increase.

It is for this reason that Knapp & Roberts is wisely selective in the medical malpractice cases we take and pursue. But this also means that, when we do take a case, we believe in it. We are willing to invest both years of our time and money, in obtaining justice and a fair result for such clients.

So what makes a medical malpractice case worth pursuing, from a specialist’s perspective?

1. The negligence should be clear (e.g., preferably more than one mistake).

That is, it should fall outside a reasonable doctor’s ordinary discretion. Remember: just because there is a bad result does not mean that there was negligence to cause it. The standard of care, by which negligence is determined in this context, is that which a reasonable doctor of the same specialty and under similar circumstances should have done. This is often proved by expert testimony by a specialist in the same field as the defendant doctor.

2. The resulting harm should be permanent or otherwise severe.

It is not enough that a doctor merely be negligent; rather, that negligence must actually cause severe or permanent harm to the patient. A doctor could be completely careless, and begin the process of amputating the wrong leg. But perhaps, after making the initial incision, the doctor realizes his or her mistake. Then, the doctor amputates the correct leg, while stitching up the wrong leg. That would be a breach of the standard of care applicable to the surgeon.

However, what is the harm to the patient? An incision on the other leg, that is uninfected, heals, and leaves a minor scar? Maybe 10 out of 10 juries would find that the doctor was negligent, and then perhaps they give a verdict in the patient/plaintiffs’ favor. But how much is that verdict likely to be? A few thousand dollars at most?

So, when we say “economically viable,” what we as medical malpractice practitioners are doing is weighing the likely jury verdict or settlement value against the amount of costs and time likely necessary to achieve it, with the understanding that there are no guarantees. So, in the interest of this example, we could spend two years litigating this case, spend $20,000 in expert expenses to bring them to trial, etc. And then we obtain a jury award in our client’s favor of $5,000.00. If that were to happen, while we may have “won,” we actually would have made a very poor overall business decision. Our firm would have lost considerable money overall, and there would be nothing left over to compensate our client.

3. The negligence needs to have caused the harm.

There could be negligence. And there could be a terrible outcome to a surgery, procedure, or other medical treatment. But sometimes these two events are completely unrelated. To use the example above, about the almost-wrongly amputated leg, suppose while later amputating the correct leg, the patient flatlines on the operating table, and dies. There, the doctor was negligent (at one point in the surgery). And there is a tragic outcome. But the two events do not seem to be causally related.

Thus, a medical malpractice lawyer would need to prove a separate instance of negligence, in relation to the amputation of the correct leg, and connect that separate instance to the patient dying during the procedure. Otherwise, there would not be a viable medical malpractice case.

Make no mistake: medical malpractice can be a devastating and life-changing event in your life, or in a loved one’s life. But the difference between medical malpractice, and a medical malpractice case worth litigating at likely great cost and years of work, largely comes down to the above factors and considerations.

We always advise injured patients or their loved ones to call multiple law firms, to try to get a consensus on whether their case is worth pursuing. Every law firm is likely to have a slightly different calculus on weighing the above factors. Different lawyers, for example, might see a particular instance as egregious negligence, while another lawyer might think that it falls within physician discretion. Or one lawyer might feel that an injury is severe enough to warrant years of litigation, while another lawyer might decide that such expense and efforts would be unlikey to produce a fair or viable result.

Ultimately, if you feel that you or a loved one was badly injured or subject to wrongful death by a doctor, nurse, hospital, or clinic’s medical malpractice, and you feel that the doctor was negligent and that such negligence caused the awful outcome, please do not hesitate to contact our office. We always have an attorney available to speak with prospective clients – we do not just pass the calls off to secretaries, legal assistants, or paralegals. We want to make sure that, if you call with a serious legal problem, that you get answers to your questions . That is what we are here for.