Medical Malpractice Claims: Will I Be Able to Find a Lawyer?

 

If a doctor or other health professional made a mistake when diagnosing or treating you, you may be thinking about suing for medical malpractice. In that case, you’re probably also wondering whether you should—or can—hire a lawyer to help with your case. We surveyed readers across the U.S. who recently had medical malpractice claims. Here’s what we learned about their experiences with the process of finding and hiring an attorney.

Why Do Lawyers Say No?

Our survey showed that readers who had lawyers were nearly twice as likely to receive a settlement or court award in their medical malpractice cases, compared with those without legal representation. Still, nearly nine in ten readers (89%) didn’t hire an attorney, though not for lack of trying. In fact, when we asked about the reason for delays in resolving their cases, about eight in ten readers said the biggest problem was finding a lawyer to represent them. This was clearly a frustrating experience, but it makes sense when you understand a bit about how the system works.

Medical malpractice cases are notoriously complicated and difficult to win. Experienced attorneys are familiar with the legal intricacies and procedural hurdles that are common in these cases. They also know how to evaluate the evidence and determine how much you’re likely to receive as a payout (in the form of an out-of-court settlement or a court award after trial). Lawyers turn down cases for many different reasons, from understaffing to conflicts—such as when they have a professional relationship with the doctor or hospital you want to sue. (Several readers told us the issue of conflicts was a particular problem in their small communities.) But the most common reasons cited by our readers reflect the biggest stumbling blocks to finding a lawyer: potential payouts that are too low (compared to costs), short deadlines for filing lawsuits, and the difficulty of proving that a medical mistake amounted to malpractice.

Costs vs. Rewards for Lawyers

Lawyers in this field generally agree to work for a “contingency fee,” or a percentage of the payout (see our article on how much medical malpractice lawyers cost). That makes it easier for people to afford attorneys, because they don’t pay unless and until they receive compensation. But it also means that lawyers carefully screen cases, only accepting strong claims with a potential payout that’s higher than the expenses needed to get there (more on that below). Otherwise, they’d be working for free too much of the time. Some factors that go into a lawyer’s costs-rewards calculation include:

  • High costs. The day-to-day costs of pursuing medical malpractice claims can be especially brutal. Among other expenses, you’ll need medical experts to prove that you have a valid claim (more on that below). These cases generally come down to a battle of the experts, and those experts don’t come cheap—with fees as high as $50,000 (or more) in big malpractice cases. Experienced medical malpractice lawyers know how to find and work with qualified experts who will testify for patients. And attorneys might agree to advance the costs and deduct them from any settlement or award you receive. But they’ll consider those expenses when they’re deciding whether it’s worth the risk of taking on your case.
  • Caps on awards. Payouts in medical malpractice cases are generally based on the losses (or “damages”) that the patient experienced as a result of the medical error—from extra medical bills and lost earnings to noneconomic damages like pain and suffering. Many states set caps on medical malpractice damages. In some states (like California), those maximum amounts haven’t been adjusted for inflation in a long time. In addition to these caps, several states require that any payout be reduced by the amount of benefits related to the injury that the patient received from other sources, like health insurance or disability benefits. So your award could be cut down significantly if most of your damages were in the form of additional medical costs that were covered by insurance.

Tight Deadlines for Filing a Lawsuit

Many readers told us that by the time they contacted a lawyer, they learned that the deadline (or “statute of limitations”) for filing a medical malpractice lawsuit had already passed or was coming up too quickly for the attorney to prepare the case. The time limits vary from state to state (usually from one to four years), and they often have provisions that aren’t all that easy for ordinary people to understand (such as when the “clock” starts). If patients wait too long to start looking for a lawyer—which can easily happen when they’re overwhelmed with health issues—they may be out of luck.

Not All Mistakes Equal Malpractice

Even if a health professional or facility made a mistake, that doesn’t necessarily mean that that the error amounted to medical malpractice. (For more information, see our article on what makes a valid medical malpractice case.) Many readers reported that the lawyers they consulted told them they didn’t have a valid claim or didn’t have enough evidence to support it. Again, attorneys know how to evaluate cases. While lawyers may need to consult with experts in complex cases, they can often tell from the first conversation with a potential client that there isn’t sufficient evidence of malpractice. Some readers told us they appreciated learning this at the outset, because it allowed them to move on.

Persistence Pays

Many of our readers reported that the lawyers they contacted about their medical malpractice claim never responded. Of course, we don’t know the reasons (it could simply be that the attorneys or their staff were too busy). But other reader responses might shed light on what it takes to find a lawyer. Of our readers who did have legal representation, nearly two-thirds (63%) said they contacted at least two attorneys before hiring one. And nearly half (45%) contacted three or more. Clearly, it helps to be persistent. (For more tips on how to go about finding a lawyer, see our article on selecting a good medical malpractice attorney.)

About This Report

The data referenced above is from Martindale-Nolo Research's 2017 medical malpractice study, which analyzed survey responses from readers who had medical malpractice claims and had researched hiring a lawyer. The names of any quoted readers have been changed to protect their privacy.

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