Joseph Grillo, M.D.
Medical malpractice attorneys realize that medical malpractice cases are very time consuming and create huge out-of-pocket expenses. To ensure adequate compensation for their time and expertise, a financial formula will provide some guidance toward that goal.
Calculations by the plaintiff’s attorney who are considering undertaking a new medical malpractice case can be made to determine if such case is economically worthwhile from counsel’s point of view.
- Assuming that you are the first attorney on the case, there should be a value of at least $30,000.
- If there is a second lawyer on the case, the value has to be $45,000.
- As a rough approximation – the average malpractice case will take at least 100 hours from the beginning to the end.
- Assume that the minimum acceptable rate for the attorney is $50 an hour.
- The fact is that at least half the cases that go to juries are verdicts for the defendant.
- Put these three premises together; 100 hours at $50 equals $5,000, a fee of one-third, which means the case has to be worth $15,000 and counsel is going to lose half of well selected cases brings the value of the case to $30,000.
In addition, litigation costs for the average medical malpractice case tried to conclusion before a jury are well in excess of $10,000 per party. In other words, the case has to have a very substantial potential value, preferably well in excess of $50,000, before it is economically worthwhile for the plaintiff’s attorney to take the case.
There are certain types of cases certainly to avoid and there are others that are likely worthwhile. Some broad stroke concepts for a “good case” include the following types of case:
Oh My God case
- This case involves a catastrophe when compared to what the outcome should have been. An example would be a toenail removal resulting in respiratory arrest and brain damage
The doctor’s conduct fell far below the standard of care
- Either being unqualified or through acts of commission or omission.
- Abandonment of patient or misdiagnosis of an obvious condition
High cost of custodial care or monetary loss
- Where projected future costs are high – the jury may have sufficient incentive to award a high verdict.
Incomplete/problematical medical records
- Since medical records are not necessarily prepared for litigation, they will nearly always be incomplete.
- Late dictation or clarifications may be a sign that the records have been altered, and this bodes very well for the plaintiff.
- One maxim is that it is worse for the defendant to change the records than to commit actual error or mistake.
- The doctor performed a procedure or delved into an area which was far beyond his or her training, experience or knowledge.
- This often happens when the general internist or family practice physician looks to augment his income by offering cosmetic procedures for which he is ill-trained. These procedures can be lucrative, but have significant downside.
The doctor’s disposition
The arrogant, holier than thou, physician, or the one who wants to purge himself or herself of guilt and accepts liability where there is none, will increase the size of the verdict.
Plaintiff attorney’s expertise
- I hate to point this one out since I have no litigation experience.
- The intricacies of medical malpractice requires a highly specialized attorney.
- They either know the medicine or collaborate with the proper medical personnel and have experience in trying malpractice cases.
- These attorneys generally take only good liability or “Oh, my God” cases and reportedly turn away twenty-four out of twenty-five cases referred to them.
- One skill that is required of successful plaintiff’s attorneys is to be able to get the jury to be angry at the physician and translate that anger into a large verdict.
Highly competent plaintiff experts:
- The alleged “conspiracy of silence” among physicians where physicians will not testify against other physicians has greatly diminished.
- Many physicians have a successful alternative careers as medicolegal experts and, because medical care is largely based on judgment and standards of required care, there is usually room for disagreement in many areas of treatment rendered.
- The plaintiff needs a board certified reputable physician who can provide clear and convincing evidence that the defendant breached the required standard of care and that the conduct of the defendant physician was the cause of the plaintiff’s injury.
- Juries are unusually sympathetic to infants injured during delivery or soon thereafter.
- These cases tend to involve devastating injuries and some lack of care on the part of the doctor, often in delaying a Caesarean section.
- They are also complex and difficult because the lawyer must know as much about obstetrics as the obstetrician.
The plaintiff is in a coma, in a vegetative state, or is blind
- Jury sympathy is strong, and damages are large because a considerable amount of special damages can be demonstrated.
Injury to eyes, face, or heart, or the presence of scarring
- These are the kinds of things for which juries award significant verdicts.
Pressure from judges to settle serious cases
- Judges are under a great deal of pressure to move cases because of the heavy court backlog.
- Serious cases often take weeks of trial and therefore make an ideal forum for the judge’s participation in helping to find a reasonable compromise.
- Cases involving medical personnel pointing fingers at each other increases the value of the case because the jury tends to blame all defendants.
- Obstetrics, orthopedics, neurosurgery and anesthesia are usually the specialties involved in the high exposure medical malpractice case, but not exclusively.
- The sudden, unexpected death or long-term disability associated with medical treatment is usually the precipitating factor in these actions.
- The extent of the injury and monetary loss present the defense team with problems which may best be handled by mitigating damages and settlement.