There are few types of personal injury litigation more difficult to handle than medical malpractice cases. Medical malpractice lawyers, representing the injured party, need to be able to prove not only that the doctor’s error constituted a deviation from the accepted standards of medical practice, but also find an expert witness willing to testify against a fellow physician.
Here are some additional examples of why it’s difficult to specialize in medical malpractice:
*In many states the health care providers win over 75% of medical malpractice cases tried before a jury. Therefore, even a seasoned medical malpractice lawyer will think twice about accepting a solid medical malpractice case, since recovery is highly questionable.
*Attorneys work on contingency basis and their retainer is called "sliding scale retainer", meaning they get less attorney’s fees, in terms of percentage, the more their client recovers. That arrangement, coupled with the fact that even a good medical negligence case can be dismissed by the jury in favor of a physician, makes this area of practice difficult to specialize in.
*Insurance companies and their doctor clients realize how expensive and costly medical malpractice cases are to litigate, and will often ignore attorneys claim letters on behalf of their clients, or requests for negotiation. They are unwilling to dispose of the case until the matter is dragged through an extensive discovery process and then a trial, all of which can last for several years, while the plaintiff suffers from the injuries sustained, and the attorney for the victim performs all the legal work without being paid a cent.
*Plaintiff must prove by testimony of an expert that a physician breached the standard of care. The expert must review all medical records, often examine the plaintiff and read voluminous deposition transcripts of all parties to fully understand how the medical negligence of the doctor caused injury to the plaintiff. So while the expert reviews all the evidence he is absent from his own practice or place of employment, meaning that he must be reimbursed for his time and effort. These days experts fees run into thousands of dollars, and the medical malpractice lawyers often have to pay the money upfront, since their clients usually don’t have the funds for it.
*The standard of care is hard to prove since the treatment or procedure performed must be so different from what is accepted in the community, that no other physician would have performed it that way. The difficulty lies in the fact that doctors may use different approaches to treat the same condition and it’s often impossible to find an expert to testify that no the doctor would have done what the defendant has done.
This all means that Medical Malpractice Lawyers must undertake very costly and time consuming litigation, while their chances of recovery are slim. It is often discouraging for victims of a negligent act to hear that, even though there may be liability on the part of the doctor, the case is not worth pursuing. It is likewise difficult for lawyers to turn down meritorious cases with serious injuries due to the grim reality of medical malpractice litigation.
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