In my post on the three critical components of a medical malpractice lawsuit, I discussed the elements of negligence, causation and damages, and how all three work together to create a compelling case.
The next step for a plaintiff and his or her attorney is to determine the value and viability of winning their potential case. Because the cost and time necessary to win is significant, the extent of damages must be taken into account. Terrible medical care that resulted in an injury from which a patient quickly recovered—without permanent damage—may not be worth pursuing.
Indeed, it is not unusual for a plaintiff’s attorney to spend between $50,000-$100,000 or even more, to get a suit through trial. To justify this financial commitment and three to five years of time, the injuries must be significant. It is critical to recover the costs, possible repayment of medical bills or insurance payments, legal fees and then still provide a reasonable recovery for the client. Otherwise, filing an action only benefits the defense attorneys and the experts.
Winning ethically is the most important. Nothing else is important. Winning also means getting money—unless at the end of a several year process a doctor, hospital, or some other healthcare provider’s insurance company writes a check to compensate a person or family for injuries received under their care, the process is just a waste of time and money.
Once these critical points have been addressed, a plaintiff must have a medical expert provide a Certificate of Merit. A Certificate of Merit is an affidavit, signed by the plaintiff attorney, stating that he or she has consulted with the appropriate medical expert and the expert believes the case has, well, merit—that there are reasonable grounds to believe a healthcare provider violated the standard of care and that violation caused injury. Without this, no matter how bad the negligence or terrible the injury, the courthouse is closed to us and we cannot beg, borrow or steal the ability to try and recover for the most terrible of injuries.
This is just the beginning of the long process to gain enough information to prove the case to a judge or jury. Attorneys that intend on filing a medical malpractice lawsuit must imperatively believe the case can be won. However, if they promise victory, your heart will be broken.
Only lawyers with expertise in this field know what it takes to win—and lose. Anyone can file, yet filing a lawsuit is the end of many steps necessary to get to the courthouse. And to the courthouse you will go, as malpractice cases very rarely get “settled out of court”. Filing, to use Winston Churchill’s famous line, “… is the end of the beginning”.
