When lawyers turn down medical malpractice cases, it’s typically because they feel the claims are not winnable. Other reasons for rejection include believing that the damages would be less than the costs of litigation and a heavy caseload that would keep the attorney from focusing on the malpractice case. Lawyers might see cases as not winnable because the evidence of malpractice is unclear, or the injury is not serious enough.
Top 5 Reasons Lawyers Turn Down Medical Malpractice Cases
1. They Believe a Case Is Not Winnable
Cases are not winnable when causation is unclear or unlikely to be proven. Causation means proving that medical negligence, or a breach in the duty of care, caused the injury.
Establishing causation is necessary for winning a case. A claim that could go either way is not good enough. A doctor simply missing a cancer diagnosis might not be sufficient. However, suppose a doctor missed a patient’s stage four cancer diagnosis, but another doctor found cancer 30 days later. In this case, the breach of care is evident. The patient or the people acting on her behalf must show that the 30-day diagnosis delay would have made a difference in his or her prognosis.
Cancer in general, involves a process of diagnosis with multiple specialists and long-term treatment. Many cases would have the same outcome even with a diagnosis 30 days earlier. When patients have complicated medical histories, it gets even trickier to show direct relationships between medical errors and harm.
Another reason a case would not be winnable is that it is not legitimate or valid as far as a medical malpractice standard goes. Sometimes doctors perform everything correctly and patients still experience injuries. The reverse can occur, too, where doctors do a lot of wrong and patients remarkably turn out fine. Both situations are not valid medical malpractice cases.
Further, “good” defenses exist against negligence claims. For instance, attorneys must show that another doctor with the same credentials would have provided better care. That is not easy to do.
2. The Damages Would Be Less Than the Costs of Litigation
A case can be too expensive to litigate, even if it seems winnable. Medical malpractice lawyers usually work on a contingency fee basis. That means they pay most, if not all, litigation expenses upfront. The clients do not pay.
These expenses add up quickly and include filing costs, travel expenses, investigator fees, and fees for medical witnesses and other expert witnesses. Attorneys get paid a percentage of the client’s settlement or judgment. If one never occurs, attorneys do not regain the money they spent.
The costs of litigation should be less than the estimated amount of damages to save clients from frustration and stress. Participating in a case is an ordeal for many clients, and much more so when they do not get money in the end. Here is additional information on expenses:
- Lawyers must usually pay for patients’ medical records, or at least the ones relevant to the medical malpractice claim.
- Various medical experts review the documentation. An expert typically charges hundreds of dollars per hour, and multiple experts review the records.
- Deposition and trial costs can run into hundreds of thousands of dollars.
Another major reason a case could be winnable but too expensive relates to the degree of injury. The next section explains more.
3. The Injury Is Not Sufficiently Critical
Medical injuries cause devastating short-term and long-term consequences financially, emotionally, and physically. Even injuries that are short-term, rather than long-term can upend a person’s or family’s life.
Lawyers must follow a high standard when evaluating cases, though. When medical malpractice injuries are involved, attorneys mainly assess the permanency of the injury and its long-term consequences. If an injury is most likely only short-term, the award amount might not be large enough to exceed the costs of litigation. Similarly, if the injury is not serious enough, the damage or judgment amounts might not be enough to recoup attorney costs.
If a claim involves death, permanent disability, or long-term repercussions, a medical malpractice lawyer may be more likely to take it. That said, it is difficult for injured people and their loved ones to evaluate cases themselves. It is better to consult with an attorney rather than decide no one is likely to take your case.
4. They Have Too Many Cases Already
Many lawyers juggle heavy caseloads. Often, they have multiple attorneys in the firm who help, along with paralegals and other staff. There are times, however, when attorneys simply have too much work and insufficient support to give a new claim the energy and effort it deserves. That applies even when the claim has obvious merit.
It can be frustrating when lawyers turn down cases, even those involving medical malpractice deaths, for the reason of work overload. However, it is unfair to the client if they took the case and lost due to being overwhelmed. These lawyers are doing prospective clients a favor and allowing them to find attorneys capable of giving their cases the necessary attention.
5. The Client Delayed Contacting the Lawyer
Different laws dictate how to file a medical malpractice claim. Laws also govern when a case can be brought (the statute of limitations) and by whom. If time is running out or a different person should have approached the attorney, that tends to be problematic.
Lawyers need time to get patients’ medical records and documentation and speak with experts to review cases. If the deadline is too close, there may simply not be enough time, and the lawyers turn down medical malpractice cases.