Evaluating Medical Malpractice Claims

By John Bisnar

Each year, I receive over 250 requests to evaluate potential medical malpractice claims. Most of these requests appear to have valid claims against a healthcare provider for errors in providing medical services or failure to provide services.

In most situations, in order to properly evaluate a potential claim, records need to be obtained and then reviewed by a medical expert. The cost of time and money to obtain records and have them reviewed generally is between $1,500 and $2,500. Therefore it is not surprising that only about one in fifty of these potential claims appear to be "economically viable".

Knowing this, it is essential that I pick through the requests and evaluate only those that have a high probability of being "economically viable," unless the potential client wants to pay for the evaluation. To properly evaluate all apparently valid claims that I receive, I would be spending about $500,000 a year ($2,000 X 250).

From years of experience I know that I will only find about five cases out of 250 that will be "economically viable". "Economically viable" means that the chance of winning and the amount of the potential award are high enough to offset the enormous costs of time and money to pursue the case.

The cases that are potentially "economically viable" are those cases that are the most outrageous, include clear liability on the part of the healthcare provider and who's "economic damages" are in excess of a million dollars. The reason that the threshold for "economically viable" is so high is due to the many roadblocks to medical malpractice lawsuits created by the healthcare industry and its insurance companies.

These were enacted by the California legislature in 1975 to keep YOU from successfully pursuing just and proper claims against healthcare professionals. Medical malpractice cases are the ONLY type of cases in California where the injured plaintiff is restricted from recovering all of his or her damages. Who benefits from this law? Who is prejudiced by this law?

Who do you think was behind getting the California legislature to pass laws that DO NOT hold healthcare providers liable for their errors in the same way as every other professional in California?

What is Medical Malpractice?

Medical malpractice or medical negligence occurs when a doctor or other healthcare provider breaches his or her duty to perform treatment to a patient in accordance with the "standard of care".

The "standard of care" in California requires that a healthcare provider exercise adequate skill, knowledge and care ordinarily possessed and exercised by other members of the profession acting under similar conditions and circumstances.

What can I recover in a Medical Malpractice case?

As in any other personal injury case, the damages which can be recovered in a medical malpractice case fall into two classifications: "special damages" and "general damages". "Special damages, or "economic", damages, are the "cost" of medical care, the "cost" of special medical devices, "costs" the plaintiff will incur in on order to continue to function, the loss of future earnings, and other "out of pocket" expenses/losses. "General Damages" or "non-economic" damages, are the compensation to the plaintiff for the pain, suffering, disfigurement, embarrassment, loss of enjoyment of life, and so on.

Legislative Limit on "Non-Economic/General" Damages
In 1975, the California Legislature limited the plaintiff's ability to recover "non-economic" damages to $250,000. No matter how much pain the plaintiff has/will suffer, no matter how their future life has been altered, no matter the disfigurement, no matter that they will never walk again, hold their child, or enjoy the normal functions and joys of life, the limit on "non-economic damages" is $250,000. That limit has not changed since 1975.

The Economics of a Medical Malpractice Case

When considering the costs of pursuing a medical malpractice case ($50,000 to $100,000+ in costs) plus attorney's fees and the projected outcome of a jury award, it becomes apparent that the only "economically viable" medical malpractice cases are those with very large "economic damages".

What about a Death caused by Medical Malpractice?
In cases involving a death, the same basic analysis applies as any other personal injury case, except for the non-economic damages and the attorneys' fees. Non-economic damages remember are limited to $250,000.

In addition to non-economic damages the hires are entitled to recover the incurred medical and funeral expenses as well as loss of income that they would have otherwise received but for the death. This situation results in most death cases of a relative that was not supporting someone, being not "economically viable", even though a life has been wrongfully taken.

Proving Medical Malpractice

It is expensive to gather and present evidence needed to prove that a provider had fallen below the 'standard of care'.

Plaintiffs in medical malpractice cases need to hire expert witnesses to testify on the issues of:

  1. the "standard of care";
  2. the provider's breach of that standard;
  3. the causal relationship between the negligence and the injuries caused; and
  4. the cost of the future care for the injuries caused; and
  5. any loss of earnings over the lifetime of the plaintiff. Most plaintiffs cannot afford the cost of hiring these experts ($50,000 - $100,000+), especially at a time when they are dealing with the changes in their life caused by the malpractice.

Plaintiffs are left to relying on attorneys to advance these litigation costs in the hope that the recoveries in their cases will repay those costs. The only part of the recovery by the plaintiff that can repay the costs without compromising that plaintiff's future medical care, nursing care, equipment needs, or lost income is the "non-economic damages" portion of the recovery which has been limited by California law.

Why are Plaintiffs' Law Firms reluctant to take Medical Malpractice Cases?

In the vast majority of medical negligence cases the profit margin is to low or non-existent. It is more expensive to pursue medical malpractice claims than it is to fight most every other type of personal injury claim, with the exception of large products liability claims against automobile manufacturers and drug manufacturers.

In California, the attorneys fees have been lowered by the California legislature to substantially less than what plaintiffs' firms earn on auto and drug cases, even though the amount of work to prepare for most medical malpractice cases is equal or greater. The plaintiffs' law firms don't want to work on, and invest their money in, cases that are substantially more difficult, riskier and pay substantially less. Generally, juries are much more likely to hold an automobile or drug manufacturer accountable for their wrongdoing than they are the local doctor or healthcare provider.

Please Keep In Mind

Please keep in mind, in California for a medical malpractice claims in most every situation (other than minors), failure to file a lawsuit within one year of the injury results in the loss of all ability to pursue legal rights through the court system. Further, please keep in mind, until I formally accept a case (a written retainer agreement is signed), I am not your attorney nor am I representing you. The fact that we may be corresponding about possible representation does not make me your attorney.

If you feel that your medical malpractice situation is "economically viable" or you wish to speak to an attorney, please contact Bisnar | Chase, California Medical Malpractice lawyers.

About the Author:

John Bisnar is a partner at Newport Beach Personal Injury Law Firm Bisnar Chase. The Bisnar Chase law firm has dedicated their practice to victims of serious injuries due to defective products, negligence and malpractice. Visit the main website at http://www.bestattorney.com or call 888-265-0161.