In analyzing whether you have a good medical malpractice case, we’ll look at three issues:
1. Did the Doctor Make an Inexcusable Mistake?
It is not enough in a medical malpractice case to prove that a doctor made a mistake. Some mistakes are excusable and are not medical malpractice.
For example, during a surgery, a doctor may accidentally cut something he didn’t intend to cut. This is probably medical malpractice, but in some cases may be an excusable mistake, and therefore not medical malpractice.
The same type of issue arises in cases involving misdiagnoses, orthopedic surgery, dentistry, physical therapy and every other healthcare field. Lawyers representing doctors--and the paid experts testifying for them--will routinely say that the most outrageous and inexcusable mistakes are acceptable conduct. We need to separate the fact from the fiction in many of these cases.
That’s why our lawyers and experts will need to determine not only that a mistake was made, but that the mistake is a mistake that a prudent doctor would not have made under the same circumstances.
Lawyers hired to defend doctors often claim that the mistake made by the doctor wasn’t malpractice, but was only “a complication” or “just a risk of the surgery." Doctors who commit malpractice will never, ever tell you that they made an inexcusable mistake. They’ll either say nothing or call what happened a “complication” – exactly what their medical malpractice defense lawyers tell them to say.
2. Did the Mistake Make a Difference?
Sometimes it is obvious that a doctor made an inexcusable mistake, but that mistake did not make a difference in the patient’s outcome.
An example we see often is a case in which the patient already has very advanced cancer at the time he first goes to see the doctor, but the doctor fails to make the right diagnosis for several months. In these cases the doctor’s delay in making the correct diagnosis may not make any difference to the patient’s outcome, because the cancer was already so advanced that it could not be cured. Where earlier diagnosis would not have made a difference, there is no medical malpractice case even where the mistake made by the doctor was inexcusable.
This is the type of complex medical and legal issue which requires the expertise of an experienced medical malpractice team. A lawyer who usually handles divorces or car wreck cases simply does not have the capability of making these determinations, and does not have access to the medical experts necessary to reach the right scientific answer.
3. How Much of a Difference Did It Make?
Medical malpractice cases are expensive and complex due to the nature of medicine and the fact that to win a case requires testimony from very expensive medical experts. The cost of pursuing a medical malpractice case – even before attorneys fees are considered – can easily reach $50,000 and sometimes as much as $100,000.
It often happens that people call us about cases which are obvious medical malpractice, and the medical malpractice made a difference, but the difference it made was too small to justify the high cost of pursuing a medical malpractice lawsuit.
An example of this situation is medical malpractice during surgery which resulted in an extra week’s stay at the hospital. Anyone who has ever had to be in a hospital knows that having to spend an extra week at the hospital is a big deal.
Unfortunately, that kind of case is not likely to ever generate a large enough settlement to cover the cost of getting the settlement. Put another way, the client in that case would never get back the amount of money he would have to pay in expenses to get to the point where a settlement offer would be made.
This is why, when we are considering whether to advise you to pursue a medical malpractice case, one of the things we look at is the probable size of the settlement you might receive compared to the cost of getting that recovery. Obviously, nobody wants to go through with a medical malpractice case if at the end of the case the amount of a settlement is so small that only experts, vendors and attorneys get paid, and there is no money left for the client.