Joe Brophy has been handling medical malpractice cases for injured patients and their families since the late 1970’s. These ten rules are a distillation of his experience.
1) Malpractice cases are very difficult and expensive to handle. Cases without very serious injuries are rarely successful. I apply the “Oh, my God!" test. If the injury sounds shocking, it is much more likely to be a case. If there is no serious injury, the jury, and therefore the insurance company are unlikely to be interested in compensating the victim.
2) Unexpected outcomes are more likely to be strong cases. For example, if an 85 year old person in poor health dies in the hospital or a nursing home, that is no surprise and not very likely to be a strong case. If a healthy 18 year old goes into the hospital for minor surgery and dies, that is an unexpected outcome, and more likely to be a case.
3) Obstetric cases involving birth injuries to babies require the most time and money to prosecute and are always vigorously defended. They are also the most gratifying cases to handle when they are successful, because disabled children and their families can benefit greatly when adequately compensated.
4) Delayed diagnosis of certain kinds of cancer (breast, colon, skin, for example) over a period of months or years may well be the basis of a valid case. Cases involving short delays in diagnosis of cancer or issues of what treatment to administer are much tougher. And, some kinds of cancer (pancreas, esophagus, ovarian for example) are almost always fatal no matter when the diagnosis is made. If there was no chance of a better result, there is no chance of a successful lawsuit.
5) Cases involving allegations of neglect against psychiatrists are seldom viable unless the patient suffers severe bodily harm or death. Yet, psychiatric patients often want to sue their psychiatrists.
6) Cases against orthopedists and neurosurgeons, especially involving spine surgery, are usually very tough. These claims are so technical that it is often hard to understand them; the patients are often in bad shape to begin with; and doctors in these specialties are very reluctant to testify against one another.
7) Cases involving foreign objects left in the body after medical or surgical procedures, or injuries to parts of the body not being treated are called res ipsa loquitur cases. That means the thing speaks for itself. They are among the less difficult medical malpractice cases to settle or win, but they are not sure winners.
8) Errors in prescribing drugs or dispensing prescriptions are very common and can have very serious consequences, especially when allergies are overlooked or grossly excessive dosages are given. Sometimes patients are given others’ prescriptions. These are easy cases to prove fault, not always so easy to prove damages.
9) Hospital infections happen all the time and are among the most difficult cases to win if the doctors recognized the infection in a timely way. A neglected infection may be a case.
10) Cases involving neglected, misdiagnosed, or mistreated heart attacks or strokes are very difficult, but can be won on the right facts.
Not all of these rules apply all the time, but at least some of them come to mind whenever someone asks me about a potential medical malpractice claim. There is no substitute for experience in evaluating medical malpractice claims. The best and most experienced lawyers may disagree about some cases. It is not at all unusual for lawyers to succeed in cases that other lawyers have turned down.
Ethics / Professional Responsibility Lawyer