Medical malpractice lawyers turn down some medical malpractice cases because they do not view them as winnable. Other reasons include the costs of litigation exceeding the potential damages, their deadlines being too close or having expired, or simply due to the lawyers having a heavy caseload. Indiana has strict medical malpractice laws.
Additionally, successfully pursuing these cases requires plenty of time, resources, and effort. As a result, lawyers have to assess claims carefully to determine if they are worth taking. The information below will shed more light on why lawyers may reject your medical malpractice claim.
Proving Medical Malpractice
Certain elements must exist for you to have a strong medical malpractice case. It is essential to know these elements because the capability of proving them plays a key role in determining whether a medical malpractice attorney will take your case or not. These elements include:
A Physician-Patient Relationship Existed
You must demonstrate that you had established a relationship with your healthcare provider. When a physician-patient relationship exists, the healthcare professional owes you a duty of care. He or she is obligated to provide treatment according to the appropriate professional standards of medical care.
A Breach of the Standard of Care
You must prove that the medical provider breached the standard of care. Some ways a healthcare professional can breach the standard of care include:
- Committing surgical errors
- Misdiagnosing a patient
- Prescribing the wrong type or amount of medication
- Recommending unnecessary procedures
Proving a medical professional breached the standard of care usually requires expert testimony by witnesses in the same field.
Damages
You must prove that you suffered harm, which can be economic or non-economic. Examples of medical malpractice damages include lost wages, lost earning capacity, disfigurement, death, medical expenses, and emotional distress.
Causation
You must prove that the breach of care directly caused the injuries or harm you suffered. Your attorney may use medical records and other documentation and hire multiple experts to prove that a healthcare provider’s actions led to your injury.
Why Do Lawyers Turn Down Some Medical Malpractice Cases?
Medical malpractice lawyers are routinely contacted by people who have been injured, treated poorly, or injured by doctors, nurses, and other healthcare professionals. However, they do not take on all these cases for various reasons. Here are some reasons for lawyers declining to take some cases.
Case Is Not Winnable
Attorneys may view cases as not being winnable for these two common reasons.
Defenses Exist to the Causation Claim
Lawyers often turn down medical malpractice cases due to reasons related to causation. A case cannot be winnable if there is no evidence linking a doctor’s lack of care or inadequate care to an injury. If a causal link cannot be established, a lawyer will choose not to pursue your medical malpractice claim.
Even when a doctor’s negligence is easy to establish, your claim for medical malpractice will not be valid if no harm occurred, the injuries you suffered cannot be linked to the negligence, or the injuries would have occurred with or without the negligence.
Suppose a patient complains to a doctor about a lump under the skin, but the doctor routinely ignores the complaints and asks the patient not to worry. A few weeks or months later, the patient sees a different doctor, who performs several tests and finds the bump to be inoperable cancer that will cause the patient’s death in a few months.
Negligence on the part of the first doctor is easy to prove due to the missed diagnosis. However, if the type of cancer the patient has was inoperable and no treatment could save or prolong the patient’s life, even if the first doctor had discovered it, causation would be impossible to prove. The first doctor’s bad care did not change the patient’s outcome. Consequently, a medical malpractice case likely would not be winnable.
Defenses Exist Against the Standard of Care Violation
Another reason that makes lawyers consider a case not winnable is challenged with proving the violation of the standard of care. Bad outcomes do not necessarily mean that there has been a deviation from the standard of care. Medicine is not an exact science. It is highly complex, with every procedure coming with certain risks. Therefore, a complication may be considered an acceptable risk of a procedure. Your doctor may provide the best care and still get a negative outcome.
Additionally, medical malpractice attorneys typically prove a healthcare professional breached the standard of care by showing that another medical professional in the same field and circumstances would have provided better care. If an attorney feels that he or she cannot get an expert to testify and prove this, the attorney may reject your case.
Damages Are Less Than the Estimated Litigation Costs
A medical malpractice lawyer may turn down a case, even if it is winnable if the expenses for proving a case exceed the potential damages. It makes no financial sense for you and a lawyer to pursue such a case.
Medical malpractice litigation is time-consuming and expensive. Medical malpractice attorneys usually take cases on a contingency fee basis. As such, they do not charge you for the services they provide unless your medical malpractice case is successful. You do not pay upfront, and the attorneys only get paid when they recover compensation for you. The attorney fees are deducted from the money recovered for the malpractice victim.
Pursuing medical malpractice cases involves several expenses that attorneys pay for upfront, such as:
- Filing costs
- Costs of having medical professionals review a client’s medical records
- Travel expenses
- Fees for expert witnesses
In Indiana, unless you qualify for an exception, you must submit a medical malpractice claim to a medical review panel of three similarly situated healthcare professionals. The panel examines the facts of a case and then votes on whether malpractice occurred. You can go to court only after going through the medical review panel process. The process is costly and can take a year or more. The costs of a medical malpractice attorney in Indiana getting a case to trial can be substantial.
Experienced medical malpractice attorneys usually do a rough analysis to get a sense of what a case will be worth and the expenses that will be involved. It would only make sense for an attorney to take a case if the damages the injured party suffered are greater than the estimated costs. Additionally, an attorney would not take a case if taking the costs and attorney fees from the judgment or settlement check that he or she can win for you would leave you with little or no money from the lawsuit.
Factors that can make the value of your medical malpractice claim low compared to the costs of litigation include:
Your Injury Is Not Critical Enough
The extent of an injury is a major reason why a winnable case may be too expensive for a medical malpractice attorney to pursue. Severe injuries with long-term consequences usually lead to larger awards. If your injury is not severe, the monetary compensation available might not be large enough to offset costs and legal fees.
You Contributed to the Harm Suffered
In Indiana, if you contributed to your injury, by law, you cannot recover anything. An example would be failing to go to physical therapy or failing to refrain from activities your doctor told you to stay away from.
Statute of Limitations Is Too Close or Has Expired
A medical malpractice lawyer cannot pursue your claim if the time limit has passed. The statute of limitations in Indiana for medical malpractice cases is generally two years after the healthcare provider committed the act that caused your injury. There are a few exceptions.
A medical malpractice lawyer may also reject your case if you contact him or her when the end of the statute of limitations is too close. That is because lawyers need time to request and review your medical records and consult with experts. The process can take several months.
Having Too Many Cases
Medical malpractice attorneys can have a full caseload and insufficient time and support to take on other cases. In such circumstances, they may not give your case the necessary attention. As a result, lawyers turn down some medical malpractice cases or refer you to other attorneys, even if your case is winnable.
If one law firm reviews and rejects your case for a reason you do not agree with or understand, you can seek a second opinion from another firm.