Why won’t any attorney take my medical malpractice case?

It can be very disappointing and frustrating at times when an attorney declines to take a patient’s case. Those victim to medical malpractice may even be outraged from the rejection and ask themselves questions like...
  1. How Often Do Lawyers Turn Down Medical Malpractice Cases?
  2. How Much Does It Cost To Litigate A Medical Malpractice Case?
  3. What Are Medical Malpractice Damages?
  4. What Is The Average Attorney Contingency Fee For A Medical Malpractice Case?
  5. How Long Does It Take To Finish A Medical Malpractice Case?
  6. How Often Do Plaintiff’s Win Medical Malpractice Lawsuits?
  7. What Is The Average Medical Malpractice Settlement Or Verdict?
  8. What Impact Does Tort Reform Have On Medical Malpractice Cases?
  9. What Are The Levels Of Severity Of Medical Malpractice Injuries?
  10. How Big Does Your Case Have To Be For A Lawyer To Be Interested?
 
We hope that this report may help patients and victims of medical malpractice understand why it can be difficult to find legal assistance and why many attorneys are less inclined to take on a medical malpractice case 
 
The main objective of the medical malpractice liability system is to compensate patients that were injured by the negligence of medical providers (doctors, hospitals, clinics, pharmacies, etc.).  In theory, medical malpractice law should provide compensation to injured patients and ensure medical providers take appropriate precautions against adverse medical events.

How Often Do Lawyers Turn Down Medical Malpractice Cases?

Studies show that nine out of ten people seeking to hire a medical malpractice attorney will not be able to find one that will accept their case.  
 
An Emory University School of Law study found that 95 percent of patients who seek an attorney for harm suffered during medical treatment will be shut out of the legal system, primarily for economic reasons. Most attorneys would not accept a case—even one they might win.  
 
The study, "Uncovering the Silent Victims of the American Medical Liability System," found that the majority of medical malpractice attorneys reject between 95 and 99 percent of the potential clients that contact them.   
 
The attorneys who participated in the study stated that insufficient damages and high litigation expenses are their primary reasons for rejecting cases.  Many suggested that tort reforms have also reduced their willingness to accept cases.
 
Malpractice attorneys agree that many legitimate cases in which the patient was injured by medical negligence aren't pursued.  Attorneys that participated in the study expressed that they truly want to help those that contact them but the current state of the medical malpractice liability system simply makes it too difficult and/or cost prohibitive to do so.  
 
Because attorneys bear the risk of paying the litigation costs if a case loses, contingency fee arrangements require attorneys to evaluate cases in terms of the risks and potential returns of the case.

How Much Does It Cost To Litigate A Medical Malpractice Case?

Medical malpractice suits are very expensive to litigate. Medmal cases require hundreds of hours of work and a huge outlay of money to pay for the investigation evaluation by experts, deposition testimony, travel, etc. 
 
The American Bar Association has estimated that the cost of pursuing a single case of medical malpractice ranges from $50,000 to $500,000.  The average cost of taking a medical malpractice case to trial is $97,000.  
 
Even though ethics rules require that costs be reimbursed (paid out of a settlement or verdict) at the conclusion of the case, contingency fee attorneys must pay for or cover costs for the duration of the case.  In other words, attorneys who charge on a contingency fee basis, like the Davis Law Group, essentially bankroll the case until the case is won.  And if the case is not won, the client most likely will not be able to repay the attorney for the costs.  For this reason, many attorneys will not risk investing in challenging, hard-to-prove, or expensive cases.  
 
Unfortunately, unless expected damages are large, attorneys who charge on a contingency fee basis simply cannot justify accepting many cases. It is very likely that the expected contingency fee in cases not expecting large damages will not offset the high cost of litigation. 

What Are Medical Malpractice Damages?

When evaluating a medical malpractice claim, attorneys focus on the economic damages—lost earnings, medical bills, and future costs caused by the injury.  Non-economic damages such as pain and suffering are also considered.  However, the hard, provable economic costs are the basic foundation of a case evaluation.
 
Many victims of medical malpractice never receive compensation for their harm. The majority of victims never file a claim in the first place, and the victims that do file claims often receive inadequate compensation that does not fully reimburse their harms resulting from the malpractice. 

What Is The Average Attorney Contingency Fee For A Medical Malpractice Case?

Among the respondents, the average contingent fee in cases that ended in a settlement paid to the plaintiff was 35 percent and the average contingent fee in cases that ended in a jury award to the plaintiff was 36 percent.

How Long Does It Take To Finish A Medical Malpractice Case?

Research shows that, on average, it takes around four years to resolve a malpractice claim.  Delays in litigation further increase litigation expenses and reduce the compensation to malpractice victims.

How Often Do Plaintiff’s Win Medical Malpractice Lawsuits?

According to the Emory study, a low percentage medical malpractice cases are won at trial.  Only twenty-four percent of medical malpractice trials end with a verdict in favor of the injured patient.  Seventy-six percent of medical malpractice cases that make it to the courthouse and are heard by a jury are lost.  This is consistent with other data from other studies.  

What Is The Average Medical Malpractice Settlement Or Verdict?

Several studies indicate that even when the medical negligence is very clear and the patient negotiates a settlement or wins at trial on 32 to 89 percent of harm (medical bills, lost wages, other expenses, pain and suffering, etc.) is reimbursed through malpractice lawsuits.
 
Remember, only 24 percent of medical malpractice cases win in court.  The vast majority of patients get nothing and their ‘no win, no fee’ contingency lawyers don’t receive any attorney’s fees.  
 
The attorneys that participated in the Emory University study reported an average settlement of $652,060.  If they were able to win a favorable jury award the average verdict was $ 1,519,727.

What Impact Does Tort Reform Have On Medical Malpractice Cases?

Unfortunately, most legislative reforms over the past several decades made it harder and harder for patients that are the victims of medical negligence to receive fair and reasonable compensation.  
 
Damage caps and other tort reforms that artificially reduce plaintiffs’ damage awards also reduce contingency attorneys’ expected recoveries. As a result, even fewer cases make economic sense for the attorneys to accept.
 
Numerous states have also enacted reforms to collateral source rules that reduce plaintiffs’ damage awards. Reforms to collateral source rules include allow plaintiff’s damage award to be reduced by the amount of reimbursement they have already received from a collateral source such as health insurance or worker’s compensation.

What Are The Levels Of Severity Of Medical Malpractice Injuries?

  1. Emotional Injury Only - Mental anguish, mental distress, mental disturbance, mental suffering.  No physical/bodily injuries.  
  2. Insignificant Injury – Minor inconvenience or short-term discomfort with no lasting impact.  No medical treatment required.  No lost work.
  3. Minor Temporary Injury – Not causing impairment and not requiring professional medical intervention.  Minimal medical treatment and expense.  No lost earning capacity. 
  4. Major Temporary Injury – Causing short-term impairment and requiring some professional medical treatment over many months.  Medical treatment expenses and temporary lost earning capacity.  
  5. Significant Permanent Injury – Major impairment lasting for the rest of the patient’s life and requiring frequent medical treatment over many months and occasional ongoing treatment in the future.  Past, current and future medical expenses and a partial or total loss in earning capacity.  
  6. Major Permanent Injury – Serious injuries requiring medical intervention, long-term care, and causing permanent impairment.  Large past, current and future medical expenses and a total loss in earning capacity.  
  7. Grave (Terminal) Injuries – Critical, life-threatening injuries that require frequent treatment and high levels of patient care which have a huge impact on life expectancy.
  8. Death – Catastrophic injuries which no amount of medical intervention can prevent a fatal outcome.  

How Big Does Your Case Have To Be For A Lawyer To Be Interested?

Studies suggest that plaintiffs with expected damage awards lower than $250,000 are finding it increasingly difficult to obtain legal representation.
 
High litigation costs and tort reforms that restrict damage awards have made it economically infeasible for attorneys to take many medical malpractice cases. Plaintiffs’ attorneys simply cannot justify taking cases that lack sufficient damages to warrant the litigation expense. As a result, most unrepresented victims will receive no compensation for their harms.

Top Six Reasons Attorneys Reject Medical Malpractice Cases

  1. Unclear Causation – It is difficult to differentiate the harms caused by the medical negligence from the underlying illness which facilitated the initial need for treatment. 
  2. Unclear Evidence Of Malpractice - It is difficult to prove that a medical mistake or negligence took place.  Lack of medical records, documentation, etc.  
  3. Case Is Unlikely To Settle –  Given that 76% of the time the doctor or medical facility wins at trial, defense attorneys (who are paid by the hour) are happy to go  the distance.  Medical malpractice attorneys often prefer to settle the case if possible rather than risk investing time and money into a case when the odds are stacked against them.  
  4. Insufficient Damages Expected From Trial Or Settlement – If it appears that the damages are relatively low and thus a verdict or settlement will be small attorneys often do not wish to take the risk.  
  5. Complexity And Expense Of Bringing The Claim – Medical malpractice cases often require multiple, expensive out-of-state medical experts to review medical records, participate in depositions, and appear at trial.  It can cost upwards of $1,000 per hour to engage a qualified and respected medical expert.  Also, jury trials are very costly in terms of paralegal and legal assistant time as well as requiring the attorney to be out of his/her office for weeks.
  6. Hospital Not Involved In Malpractice – If a hospital is not involved some attorneys will not accept the case.  Certain types of care facilities are not required to carry much insurance.  And independent doctors do not often carry large liability policies.  However, hospitals typically have a great deal of insurance coverage.  Conversely, given the potentially high costs of suing a hospital that has deep pockets and teams of attorneys, some lawyers choose not to accept hospital cases.
Chris Davis
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Christopher M. Davis is principal attorney and founder of Davis Law Group, P.S. in Seattle, WA.