Medical malpractice cases are notoriously difficult for patients to win. You might read about plaintiffs getting awarded millions of dollars after a successful medical malpractice lawsuit, but you'll rarely come across articles about plaintiffs who have lost their cases at trial, and that's the more common outcome.
The majority of medical malpractice lawsuits result in defense verdicts, meaning the doctor, hospital, or other health care provider won the trial after the jury heard and considered all the evidence. There are many challenges inherent in a medical malpractice case, but some of the highest hurdles include:
While proving that the doctor's actions (or inaction) amounted to medical negligence is the key to a medical malpractice case, it's a difficult proposition. 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. That means the lawyer needs to locate and work with qualfiied medical experts who can study the course of treatment, identify what the doctor actually did, and illustrate what the doctor should have done, in line with the appropriate medical standard of care.
Very few doctors are going to acknowledge that they made a mistake. Medical textbooks may list multiple ways to treat 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. Learn more about proving medical negligence.
Doctors win the 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 the practice of 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 end up with a good outcome. Basically, unless the doctor made an obvious mistake, like leaving an instrument inside a patient after a surgical procedure, juries often give the doctor the benefit of the doubt.
Besides having the right lawyer on your side, the key to convincing the jury that medical negligence occurred is having expert medical witnesses who can paint a compelling (and easily-understood) picture of the doctor's wrongdoing.
Finding a qualified lawyer is often critical to the success of a medical malpractice case, usually much more so than in a standard personal injury case. Medical malpractice is a specialized area of the law, so you want a lawyer who specializes in medical malpractice, or who at least has extensive experience handling these kinds of cases.
The right lawyer will know how to locate, sift through, and analyze the immense amount of medical evidence that usually comes into play in a typical medical malpractice case. When a medical expert's help is needed (which is usually inevitable in these cases), the lawyer will have an extensive list of qualified professionals to contact.
An experienced lawyer will also know how the game is played when it's time to talk settlement with the health care provider's insurance company. (Learn more about medical malpractice settlements.)
Finally, medical malpractice cases are expensive, primarily because of the cost of putting on the best case. Experienced lawyers know this and are prepared to bear the costs (which could easily reach tens of thousands of dollars) up front. And keep in mind that under a standard medical malpractice lawyer fee agreement, the client won't have to pay these costs unless the lawyer recovers a settlement or court judgment in the client's favor.