I wish I could take every case presented to me in which the doctor or nurse or other healthcare provider committed malpractice. I would be an even busier attorney because there is so much malpractice. At least 50% of the cases I see involve malpractice which caused some harm to the patient. While technically that is enough to support a lawsuit, standing alone it is not enough to make for an economically viable medical malpractice lawsuit. An economically viable medical malpractice case is the only one that can be brought. Because of the expense of a malpractice suit, an economically viable suit requires clear evidence of malpractice and a significant, permanent injury.
Medical malpractice suits are the most complex and expensive lawsuits an individual can be involved in for a number of reasons.
- They are fiercely defended.
Study after study has confirmed the fact that malpractice insurers spend significant amounts defending cases, even when it is clear that the case against their insured has merit. They recognize that juries view doctors and other healthcare providers favorably so there is a good chance that they can win the case, even if there was some malpractice. For the plaintiff this means there will be no quick settlement. If a case is to settle at all, it will usually settle after all of the expensive discovery has been done and the case is ready for trial. That may be a year or two down the road.
The doctors and other professionals who purchase malpractice insurance expect their insurance company to be vigorous in its defense of them. Doctors are not the most objective people when it comes to assessing their own care. Many of them are highly offended if a patient questions their care, much less brings suit against them. An insurance company which is perceived as being insufficiently aggressive in defending its insureds will not get many renewals.
By defending these cases vigorously, the malpractice insurance companies also intend to deter attorneys from taking low value cases. They make it clear that the case is going to cost the attorney more than she or he can expect to recover.
- They are expert witness intensive.
Except under very rare circumstances, which I have never encountered, a plaintiff in a malpractice case must have a properly qualified expert witness to testify that the defendant breached the standard of care. $600 per hour is the lowest rate any of these witnesses charge and most charge more than that. The expert must be paid to review the case in the investigative stage, to prepare a report after the case is filed, to prepare for giving a deposition, and to testify at the trial, if there is one. If the expert is from out of state, and most of them are, she or he must be paid to come to Arizona for the trial. The expert must be reimbursed for travel expenses, including airfare (usually first class), hotel and meals and income lost from being out of the office for a day or two.
The plaintiff must also have a properly qualified expert witness to testify that the breach of the standard of care was the cause of the plaintiff’s injury. Sometimes this causation expert is the same person as the standard of care expert, but more often than not they are two different people. This person gets paid also.
Most cases involve additional expert witnesses, including economists, labor market witnesses, cost of future care witnesses and experts in other medical fields that may be involved in the medical care.
The defense is also hiring experts and, if the plaintiff wants to take their depositions, must pay them for their time. Each defendant will hire some experts, although the defendants may also share some experts. It is not uncommon to have five or six experts per side in a case.
- Expensive testing may be necessary
In many cases there are allegations of disability and inability to work in a particular field or at all. In some cases there may be allegations of brain damage. Defense counsel in these cases will almost always hire experts to test the plaintiff and to prepare a report. Plaintiff is going to need his own experts to perform testing and to prepare a report. The testing can take a day or more, depending on the nature of the claim, and can be very expensive.
- Discovery is extensive and expensive
In order to prepare for trial, I will take the depositions of the defendant healthcare providers. I will usually take the depositions of most of the defense experts. The defense attorneys will take the plaintiff’s deposition and the depositions of the plaintiff’s expert witnesses. The depositions will be recorded by a court reporter and may also be recorded by a videographer. The court reporter charges a fee for recording the deposition and a separate fee for preparing a transcript of the testimony. The videographer charges for his time at the deposition and for a copy of the video recording. A deposition which is not video recorded can cost between $500 and $1,000. Video recording adds another $500.
- There may be an appeal
Medical malpractice trials are usually longer than a week. In a complex case with multiple defendants, the trial may last a month. The parties usually arrange to hire a court reporter to record the proceedings. Transcripts of the trial are expensive and run into the many thousands of dollars but they are essential if one of the parties appeals from the verdict. If the plaintiff is successful and recovers a large verdict, it is almost a certainty that the defendants will appeal the outcome. This adds both time and expense to the case. Regardless of who is appealing the outcome, one of the results on appeal may be that the case is sent back for a new trial. This would add another year or two to the case and require a lot more money be spent to put the trial on again.
- If successful, plaintiff must pay a contingent fee
Medical malpractice attorneys usually take their cases on a contingent fee basis. This means that the client need not pay the attorney, unless the attorney procures a recovery for the client by way of settlement or trial verdict. The fee is determined by the amount of the recovery. The usual arrangement is 40% of any recovery that does not involve an appeal and 45% in the event of an appeal. Since I usually put in over $100,000 of my time in a case, I need to see a likely recovery for my client of at least $300,000 in order to just break even. In addition to paying my fee out of any recovery, the client must reimburse me for the costs I have advanced, which include filing fees, the costs of expert witnesses and the costs of discovery. In a recent case I settled, the costs alone were over $125,000.
- There has to be something in it for the client
A malpractice case is about getting justice and a recovery for the client, not keeping me occupied and paid. Unless there is something meaningful at the end for the client, it makes no economic sense to bring a case, even when there has been malpractice which caused damage to the client.
In our hypothetical $300,000 case above, the attorney’s fee would be $120,000. If the costs were $75,000, which is a fairly common number, the net recovery to the client would be $105,000. That is not a lot of money for the stress and strain of a malpractice case and the risk of losing at trial and owing the defendants $25,000 or $30,000 for the cost judgment owed to the prevailing parties.
- Conclusion
It is sadly obvious from the above that only those most seriously injured by malpractice have any chance of finding a competent, experienced lawyer and bringing a suit to recover damages for what was done to them. Every malpractice victim not suffering a permanent, serious injury is just left to suck it up while listening to doctors whine that they are the victims of a judicial system that encourages frivolous lawsuits.
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