Although hospitals will always pretend that frivolous medical malpractice cases are putting their bottom line at risk, the truth is much different. First, medical malpractice falls under the umbrella of personal injury, which means your lawyer usually won’t be paid until you do — and that means the case needs to be won first. A medical malpractice lawyer won’t take on a frivolous case, because it means they won’t be paid when they lose.
Second, very few medical malpractice cases are even tried. The statute of limitations severely limits how many cases could even make it to court. Others are settled, but even that number is less than it should be.
That’s why you need to know a few things before you try to make a medical malpractice case.
First and foremost, speak to a medical malpractice lawyer about what you know. If there are gaps in the story that need filling in, your lawyer will help you figure out the details you left out of the story. This first session is technically just a consultation — but remember, your lawyer doesn’t get paid until you do anyway, so there’s no reason not to get one.
Second, proving a case isn’t always easy. You need to accomplish several things before trying to make your case. Be sure that you can establish that a doctor-patient privileged relationship occurred. That means at some point a payment was made. Then, you need to establish how a physician was negligent when treating you. It’s not enough to walk away unhappy — you need to have been literally injured through negligent care.
And more than that, it’s not enough to be injured through standard operating procedures (which they have in place to avoid lawsuits). You need to establish how the care you received was different than typical standard operating procedures.
Only after you successfully establish those facts can you determine the extent of the damage, both physical and emotional. This number is complicated. The judge will first look at the bills incurred during treatment. Afterward, the damages become more objective. How much did you suffer because of the doctor’s negligence? Will there be additional medical bills in the future? Did the injury reduce your future earning potential? How much time off from work did you require?
You can see how complicated the process can get. You’ll be arguing to establish these rather abstract points, whereas the opposition will be arguing that you didn’t suffer as much as you say, and that you probably didn’t get injured because of negligence. The best possible outcome is avoiding court altogether. Your attorney will try to reach a settlement outside of court, because fighting courtroom battles always ends in a question mark.