The Challenges in Winning a Medical Malpractice Lawsuit

Due to complicated medical evidence and juries' tendency to support doctors and hospitals, medical malpractice lawsuits are difficult to win.

Medical malpractice cases are difficult to prove and win. The newspapers often have articles about people who won millions of dollars in a medical malpractice lawsuit, but there are rarely any articles about all of the people who lost their medical malpractice cases -- and losing the case at trial is the more common outcome.

The majority of medical malpractice lawsuits result in defense verdicts, i.e., the doctor won the trial. There are many challenges in bringing a medical malpractice case. Some of the most common include:

  • proving the doctor’s negligence,
  • convincing the jury that the doctor was negligent, and
  • finding a qualified lawyer.

Proving the Doctor's Negligence

Proving negligence in a medical malpractice case is difficult. The plaintiff’s lawyer is often stuck with nothing more to rely upon than the doctor’s own notes, which may very well be cryptic and self-serving. The lawyer needs to work with his/her medical experts to find out what the doctor actually did and what the doctor should have done. Very few doctors are going to acknowledge that they made a mistake. Medical textbooks may list multiple ways for treating a specific injury, illness, or disease. The lawyer often has to be quite creative in order to tease out the doctor's (or hospital's) negligence.

Convincing the Jury That the Doctor Was Negligent

Juries nationwide are tough on medical malpractice plaintiffs. Doctors win the vast majority of medical malpractice cases that go to trial. Lawyers and legal experts differ on why this is so, but one important reason seems to be that juries understand that medicine is hard, that there is often no one right way to do something, that most doctors try their best, and that not all patients have a good outcome. Basically, unless the doctor made an obvious mistake, like leaving an instrument inside the patient, juries often give the doctor the benefit of the doubt.

That being said, malpractice happens. If you believe that you were the victim of medical malpractice, you should contact a qualified medical malpractice lawyer immediately to learn your legal rights.

Finding a Qualified Medical Malpractice Lawyer

Finding a qualified lawyer is critical in a medical malpractice case, much more so than in a standard personal injury case. Medical malpractice is a specialized area that not many lawyers have expertise in. If you have a medical malpractice case, you need to find a lawyer that actually specializes in it. The lawyer does not have to do solely medical malpractice, but a significant percentage of his/her caseload should be medical malpractice.

There are several reasons for wanting a lawyer who specializes in medical malpractice.

Complicated Medical Evidence

First, medical malpractice involves tricky medical issues. You want a lawyer who is more accustomed to dealing with complex medical evidence, compare with the average personal injury lawyer.

Insurance Company Pressure

Second, the insurance companies will not respect a plaintiff’s lawyer who does not specialize in medical malpractice when it comes time to talk settlement. Many times the insurers will simply refuse to make any offer at all in a medical malpractice if they think that the plaintiff’s lawyer is not experienced enough.

Necessity of Medical Experts

Third, medical malpractice cases almost always require a medical expert or a team of medical experts to prove liability. Most doctors refuse to get involved with medical malpractice cases because they do not want to testify against a fellow doctor. An experienced medical malpractice lawyer has a team of qualified doctors on his/her Rolodex, while an inexperienced lawyer will struggle to find a qualified and willing medical expert.

High Cost of Litigation

Finally, medical malpractice cases are expensive, primarily because of the cost of the medical experts. Experienced lawyers know this and are prepared to bear the costs, which could reach tens of thousands of dollars. Novice medical malpractice lawyers may not be able to afford the costs, and your case may go down the drain if neither you, nor your lawyer, can afford to pay the necessary costs to effectively pursue a lawsuit.

Is Your Lawyer Experienced In Medical Malpractice? The first thing to do is to ask the lawyer about his/her experience in medical malpractice cases. How many cases has he/she handled? How many medical malpractice trials has he/she had? How many trials has he/she won? This is sort of a trick question. Don’t expect a 100% or even a 50% winning percentage. Medical malpractice is hard. Even a good lawyer might lose more malpractice trials than he/she wins. However you find out about the lawyer’s experience, make sure that you are comfortable that the lawyer is indeed an experienced medical malpractice lawyer.

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