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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?

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Attorney answers 6

Best Answer
Posted

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.

Asker

Posted

criminal lawyers can choose their juries.

Posted

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.

Posted

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

Asker

Posted

because Fl has too many old people.

Posted

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.

Posted

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.

Posted

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

Asker

Posted

Prove causation will be difficult. My case is not your latter example. I doubt there has been a case like it ever in the literature.

Asker

Posted

The tenor of your response seems ot indicate derision for people who put their trust in doctors- they do not have the benefit of an eye opening profession such as your that sees cases if not of malpractice than just the disorganization and chaos of the medical world and know not trust doctors just based upon having had your eyes opened. In my case trusting not trusting the doctor was completely irrelevant.

Asker

Posted

Thirdly, who said anything about hurt feelings? I would infinitely prefer being burglarized and my house completely completely destroyed and have to file for bankruptcy then to have my body destroyed by a guilded doctor because at least in the former case the law cares about penalizing the criminal for his actions whereas for lack of death or loss of limb the doctor will continue to live on his life never being held accountable for his actions. So yes rage, spite, and a conviction that the doctor should be held accountable for his actions, but hurt feelings-NO.

Clifford M. Miller

Clifford M. Miller

Posted

No derision was intended. I was aiming at candor. The examples were meant to illustrate the thought process of taking/not taking a case. I have no idea what your case is about. I have malpractice cases that I actively pursue, but I do turn away at least 90% of the queries I get on the topic, and many of them fall into the last fact pattern I related. If you describe the "malpractice" perhaps someone on the list can help you evaluate whether you have a case or not; or call one of the responding lawyers to talk about it.

Asker

Posted

your response about "$5k in damages but no malpractice" brings up a very significant difference btw medical damage and car damage. With car insurance, proved damage by the other party results in automatic payment of my damages by the other party's insurance-but in medicine even proven negligence does not mean that the opposing party will pay for my damages, which is very backwards because people's bodies are more important than their cars and yet if we have to "repair" our bodies because of a proven doctor's mistake, if the "repairs" don't cost over like $1mil than we have to foot the bill. What this is saying is that auto insurance is more progressive than out healthcare system insurance.

Asker

Posted

or it means that there are so many medical mistakes resulting in damage and extra costs, far more than car insurance pays out for car damage

Clifford M. Miller

Clifford M. Miller

Posted

The definition of "negligence" in both cases is actually the same. What is different is the cost of proceeding, and the complexity of the proof. In a typical automobile crash case, expert testimony on the issue of negligence is not necessary. But it is always necessary in medical malpractice cases. The issue of causation also tends to be much more complicated in medical malpractice cases than it does in automobile crash cases. This is primarily because the person seeking medical care is often seeking the care because of an illness or injury. So the question usually arises if the damages are caused by the original illness or injury or due to the malpractice. Couple this with the legislature intentionally making these cases more expensive to prosecute, and you have the current reality of medical malpractice litigation in Florida. Whether it is viewed as "fair" or not may be important to me or you, but it doesn't have anything to do with the legal analysis. If you truly have injuries that are caused by doctor's malpractice I would suggest you consult with a lawyer handling those cases as soon as possible. You also could post the facts on AVVO and see what lawyers think about them.

Asker

Posted

I do not fear that there will be trouble proving that the original damage was done by the malpractice since there was no original injury or illness. My problem is that it occurred at a university hospital that has cutthroat lawyers and copmuterized medical notes I wouldn't put it past them to revert to unscrupulous measures to make their case considering that they appealed the damages on a 15yr old girl who lost all of her limbs. Their lawyers will be especially vigilant since the hospital is in a financial hole and layed off huge numbers of people last year. If my meeting with risk management is any indication where I appeared without a lawyer and with no demand for money just "restore back to the condition I was before the procedure" the risk management doctor was already grilling me and undermining me as though I had just demanded a king's ransom in damages? And then they banned me from the hospital.

Asker

Posted

if you are familiar with the med malpractice cases of tonsilectomy back when they always removed tonsils "just because they were there-no danger, no pathology." My case is like that except there were complications when man tries to alter nature which has 4.6 bil yrs of evolution and modern medicine which has slightly more than 50yrs?

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