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If lawyers only take med malpractice cases on contingency that they know they can win, then how can the defense win 9/10 @trial?

Homestead, FL |

I have personally been rejected many times and am looking into alternative solutions, but if bad cases are so carefully "weeded out" in the beginning then how could the defense ever win at all? If the defense wins, then maybe the original discernment of the prosecuting attorney needs to be questioned. Is it because the juries look at the plantiff and if he/she can still breathe, eat, and walk, then they are less willing to hold the doctor accountable?

Attorney Answers 6


  1. Best answer

    The cases where the medical provider obviously hurt someone and caused serious injury are usually settled without the necessity for a trial. The cases that actually reach a jury are usually those that have some type of "wart" on them, something that makes the defense think they can win it. Example: the standard of care isn't quite as clear as the plaintiff would like. Or maybe the plaintiff themselves is not appealing to the jury because of a bad personality. Or maybe the injury is minimal.

    Also, keep in mind that juries are not always geniuses. You can get terribly wrong, goofy, or hateful results from some jurors.


  2. You are basically right. If you re not killed or extremely impaired or lost a body part then many jurors find it hard to hold the doctor accountable.

    DISCLAIMER: David J. McCormick is licensed to practice law in the State of Wisconsin and this answer is being provided for informational purposes only because the laws of your jurisdiction may differ. This answer based on general legal principles and is not intended for the purpose of providing specific legal advice or opinions. Under no circumstances does this answer constitute the establishment of an attorney-client relationship.


  3. You are in one of the worst two states for medical malpractice. If you were in PA, it would be a different ballgame.

    Only 29% Contingency Fee! Phone: 215-510-6755 www.InjuryLawyerPhiladelphia.com


  4. I recently answered a similar question for somebody in FL. The defense win most cases that are tried, but most cases that are favorable to the plaintiff are settled. That's how plaintiff's medical malpractice lawyers are able to keep their doors open. If you can't find a lawyer willing to take on your potential case, there is most likely a problem with the case.

    Any opinions stated in response to Avvo questions are based upon the facts stated in the question. Responses to Avvo questions are for general information purposes only, and should not be construed or relied upon as legal advice.


  5. Lawyers in Florida do NOT "ONLY" take med mal cases on a contingency. You can pay me and many other such attorneys hourly. It is typically not to your advantage to do so. The question you are really asking is WHY would an attorney take a case on a contingency fee if they are going to lose 90% at trial. The answer is that 95% of my cases and I suspect a similarly high percentage of cases for many med mal attorneys settle before trial. I don't take cases which have a 90% chance of loss. But IF TRIED, the printed statistics are what they are. Does that clear it up?

    This is not intended as specific legal advice to you or about your case. The only way to provide that is for you to have a conference with an attorney so they can ask you questions about your claim, read records and learn far more than is contained in your note. No attorney-client privilege is established by this response.


  6. The percentage of cases one are lost at trial is really not the most important issue.

    The most important issue is whether your case is likely to be won at trial or settled before trial. It is more likely that a case with extremely good liability will be settled before trial. It is more likely than a case with extremely high damages will be settled before trial. It is also more likely, that if that case is tried, that it will be won. Defendant's counsel also understand these issues. So a defense lawyer would rather try cases in which liability is unsure, or damages are limited. Sometimes, however, the insurance adjuster insists on the defense lawyer trying cases that the defendant is likely to lose.

    So, in deciding whether to take these very expensive cases, a lawyer has to consider both liability and damages. A lawyer also has to consider whether a judgment can be collected. Of course, if you are absolutely certain that you have a valid case, and multiple lawyers have rejected your case, you could retain a lawyer to represent you on an hourly fee basis. You're probably looking at at least $50,000 to $100,000 to prosecute the case. If the case gets complicated it could be two to three times that amount. (That is about what the defense lawyers get paid for these cases as well).

    The analysis of liability generally goes like this: is there a legal duty? (A treating physician but not a bystander for instance would owe a legal duty). Has the legal duty been breached? (This generally means was there negligence, which is a deviation from the standard of care, or acting without due care. So if what the doctor did was common practice, there is no case). Did the breach of the standard of care cause the damages? (This is most often the place where the case falls apart. The fact that somebody ends up with a bad result does not mean it was caused by negligence).

    Than the analysis shifts to damages. Generally, a lawyer will divide the damages into special and general damages. Special damages are the hard damages like medical bills, lost wages, the cost of future accommodative devices like wheelchairs. General damages are things like pain-and-suffering and mental anguish. Cases with high special damages are much better than cases with low special damages. Cases involving loss of bodily function of bodily members, such as the loss of an arm or leg are also good cases. But cases involving only hurt feelings are usually not worth bringing.

    Many inquiries that are not worth bringing fall into this factual pattern: I had a medical problem. I saw the doctor. The medical problem didn't get better, or got worse. Then the doctor was rude to me. I had to pay $5000 in medical bills and lost a week from work. So I want to sue the doctor.

    This is a summary based on incomplete facts. You should not rely on it as legal advise. No attorney-client relationship is intended to be formed. You may call me 772-562-4570; email me vblawyer@bellsouth.net, or visit my website http://www.millerlawoffices.us

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