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Are Medical Malpractice Cases Hard to Win?

Are Medical Malpractice Cases Hard to Win

Individuals who suspect that a medical provider’s mistake led to them suffering an injury, illness, or health complication often wonder if they have any meaningful rights to seek and receive compensation. The prospect of suing a doctor may seem overwhelming to them, or they may have heard that medical malpractice cases are difficult and expensive to pursue.

Those worries aren’t entirely misplaced, but they’re also not entirely accurate. Yes, medical malpractice cases tend to be harder to win than other types of personal injury lawsuits. But that doesn’t mean—not by a long shot—that they’re impossible. You just need an experienced medical malpractice attorney on your side.

About Medical Malpractice

Medical malpractice (sometimes referred to as “medical negligence”) occurs when a medical professional’s failure to deliver a minimum acceptable standard of care leads to a patient suffering harm.

Not every mistake made by a doctor or other medical professional constitutes medical malpractice. Only mistakes that fall short of a minimum standard of care and harm a patient can qualify.

Medical malpractice may occur, for example, through:

  • Diagnostic errors, such as delayed diagnosis, wrong diagnosis, or missed diagnosis.
  • Medication errors, such as providing the patient with the wrong medication or the wrong dose of medication.
  • Birth injuries, including failure to perform a cesarean section when medically indicated and failure to adequately monitor the newborn for signs of distress.
  • Surgical errors, including wrong patient surgery, wrong-site surgery, or leaving a surgical implement such as a sponge in a patient’s body after surgery.
  • Failure to obtain informed consent. Patients have a right to know the risks associated with the treatment their doctor recommends and to decide whether to have the procedure based on their willingness to accept those risks.

These are just a few examples, of course. Virtually any medical error could amount to malpractice, so long as it meets the two basic criteria above.

Factors That Make Medical Malpractice Cases Challenging

Just because medical malpractice is relatively easy to define in general terms, however, doesn’t mean it’s easy to prove. In contrast to many other types of personal injury claims, such as car accidents and slip-and-fall cases, medical malpractice claims present lawyers and their clients with a host of challenges and potential complications.

Here are some factors that can make malpractice cases difficult to win, and why you always need a skilled medical malpractice attorney on your side to give yourself the best chance of success.

#1. Was it inadequate care, or just how things go sometimes?

As we’ve explained, malpractice only happens when medical providers fail to deliver an acceptable standard of care to a patient. Broadly defined, the “standard of care” medical professionals have a duty to deliver consists of the type of care a reasonably and comparably skilled provider would deliver to a patient in similar circumstances.

It’s not always easy—especially for a patient or a patient’s family—to determine if a doctor has failed to live up to that standard. It’s also sometimes a challenge to prove such a failure. Here’s why.

First, the minimum standard of care medical providers must deliver varies widely from doctor-to-doctor, patient-to-patient, and setting-to-setting. The minimum standard of care for a patient showing symptoms of a heart attack won’t necessarily be the same if the patient seeks treatment from a rural family practitioner, compared to seeking help from a cardiologist in a big city hospital.

Second, providing medical care involves dealing with significant variability and ambiguity. No two patients are identical. Emergencies can arise that require quick action. Doctors and other providers frequently must make judgment calls about a course of treatment. Making the wrong choice about how to treat a patient doesn’t necessarily mean the choice was unreasonable.

Third and finally, a bad health outcome isn’t always a sign that a medical provider did anything wrong. Some people only seek medical care when they’re already too sick for a doctor to do much for them. Some medical procedures come with risks that even the most skilled doctors cannot eliminate. And sometimes, a patient’s health just takes a turn for the worse.

For a successful medical malpractice claim, a lawyer may need to overcome all these potential uncertainties and ambiguities.

#2. Did malpractice harm me?

Proving medical malpractice also requires showing that a patient suffered harm because a medical provider failed to deliver a minimum standard of care. That, too, isn’t always a simple task.

People often seek medical care when they’re already hurt or sick. They understand that doctors aren’t miracle workers. It’s part of being human that they may stay hurt or sick, or that their condition may only partially improve, under the doctor’s care.

One complication in proving harm, in other words, simply involves showing that a provider’s actions (or inactions) made a patient’s condition worse than if the patient received adequate care. An emergency medicine doctor may make a bad mistake in treating a gunshot victim, but that mistake may nevertheless have made no difference if the victim was certain to die.

Delays in noticing harm or drawing a link between it and substandard medical care can also complicate medical malpractice claims. For example, the connection between a medical error that triggers a slow degeneration of a spinal disc, and a patient’s later chronic back pain, may not become apparent for years. Even then, the passage of time and potential loss of medical records may make it difficult to prove the link.

As above, these are not impossible hurdles to overcome, but they do take the knowledge and skill of a trained, seasoned medical malpractice attorney.

#3. Complicated procedures and other legal limits on claims

The principle that someone can sue a doctor for harming them seems obvious and unobjectionable to most people. But over the years, medical malpractice claims have become a hot-button political issue. Citing rising insurance costs and supposedly “frivolous” claims, medical and insurance industry lobbyists have largely succeeded in convincing state legislatures nationwide to pass laws that make it more difficult and expensive to pursue a medical malpractice claim compared to other personal injury matters like car accidents or slip-and-falls.

Under California’s Code of Civil Procedure (CCP), for example, an attorney may not file a medical malpractice lawsuit without having given all named defendants at least 90 days prior notice of the intent to file the action. The notice must identify the legal basis for the claim, the losses sustained, and the nature of the injuries. Only after 90 days have passed, plaintiffs can file the claim in court. Most other personal injury cases do not have this requirement.

California law also:

Believe it or not, California’s limits on medical malpractice claims aren’t even close to the most restrictive in the country. In some states, for example, you cannot file a medical malpractice claim until you have received a certification from a medical expert that your claim has merit. Other states require you to receive prior permission to proceed with your case from a medical malpractice review board, which means you have to litigate your case twice.

Finally, numerous states require you to engage in settlement negotiations and/or mediation with a medical provider before you have filed your lawsuit, and some impose limits on your financial recoveries at trial if you fail to accept a settlement offer.

Failing to comply with procedures for filing and pursuing medical malpractice actions can result in a claim getting thrown out of court and, potentially, the loss of rights to compensation. This is yet another reason why it is critically important to seek the help of an experienced medical malpractice attorney if you suspect medical errors harmed you or a loved one.

#4. Fickle juries

Juries are only involved in about 7 percent of the nation’s medical malpractice claims each year because the vast majority of these claims—like all personal injury claims—get resolved through settlement before they reach trial. Even so, research suggesting that medical malpractice juries can be fickle and hard to convince signals yet another potential complexity that it takes a skilled medical malpractice lawyer to navigate.

Common challenges involving proving a medical malpractice case to a jury include:

  • Jurors convinced that claimants in medical malpractice lawsuits are only interested in seeing how much money they can get.
  • Jurors who exhibit a bias toward medical professionals or injured patients, based solely on their own experiences with the U.S. healthcare system.
  • Jurors wary of medical experts providing testimony for either side, particularly if they are paid to do so.
  • Jurors who give undue weight to a doctor’s bedside manner in evaluating the credibility of a claim.
  • Jurors who simply do not understand the evidence or testimony given in a medical malpractice case.
  • Jurors who tend to blame the victim for not taking actions that might have avoided injury, such as seeking a second opinion or promptly addressing pre-existing conditions

Skilled medical malpractice attorneys can overcome these challenges, however. In some cases, they can even turn them to their client’s advantage.

How an Experienced Medical Malpractice Attorney Can Help You, Today

If you suspect that a medical error harmed you or your loved one, we strongly encourage you to contact an experienced medical malpractice attorney right away. Do not wait until your or your loved one’s condition improves, worsens, or resolves in some other manner. The sooner you connect with a knowledgeable lawyer in a free consultation, the greater the opportunity you will have to protect your rights to seek compensation.

A skilled medical malpractice attorney can:

  • Take quick action to investigate the potential link between an injury, illness, or health complication and the delivery of medical care;
  • Connect you with other medical providers who can provide second opinions and advice about whether malpractice has occurred;
  • Take the steps necessary under your state’s laws to give notice and preserve your right to make a claim, before critical deadlines expire;
  • Calculate the scope of financial and personal harm you have suffered, and may yet suffer, because of medical malpractice, to ensure that any claim you make seeks the maximum damages available;
  • Prepare, file, and pursue a lawsuit, arbitration, or administrative action asserting your rights to compensation;
  • Work closely with medical and financial experts to demonstrate the link between malpractice and your injuries;
  • Engage in settlement negotiations with defense lawyers and insurance companies representing the medical provider defendants;
  • Appear before courts, tribunals, judges, and juries to argue your compensation case.
  • Collect the compensation due to you through a settlement, judgment, or jury award, and help structure that award to meet your needs while complying with applicable laws.

Of course, a medical malpractice lawyer cannot take any of these steps on your behalf until you reach out for help. The process of hiring a lawyer often starts with a free consultation at which you and the lawyer discuss your potential rights and options. If you and the lawyer agree to work together, the lawyer will virtually always take the case on a contingent fee basis, meaning you pay nothing unless the lawyer gets you results.

For additional information about the process of pursuing a medical malpractice claim, and to learn more about your potential rights and options, contact a skilled medical malpractice lawyer today for your free, confidential, no-obligation consultation.

Gomez Trial Attorneys
655 West Broadway, Suite 1700
San Diego, CA 92101
Phone: (619)-237-3490


Posted in: Medical Malpractice
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