Medical malpractice is anything but uncommon. The estimated deaths by preventable medical error ranges from 98,000 (very outdated number) to 440,000 per year in hospitals alone. Many more deaths result from errors outside the hospital setting. In addition, these are just deaths. This does not include injuries, sometimes devastating and permanent, that are caused by preventable medical error.
Despite the widespread myth of frivolous medical malpractice lawsuits, the opposite is actually true. Only a very small percentage of acts of medical malpractice result in claims, much less lawsuits. There are a number of reasons for this. One of these reasons is the very reason you may be having trouble finding an attorney to take your case.
Medical Malpractice Claims Require Expensive Medical Experts
Medical malpractice cases are very expensive to pursue. Before even taking a case, most attorneys will have had the case reviewed by an expert. The expert will be a medical professional with expertise in the medical field in which the error occurred. In some cases, it may be necessary to have more than one expert for the initial evaluation of the case to determine whether the case should be pursued. These experts are very expensive.
Without an Expert, the Case Will be Dismissed
The evaluation is simply the first stage. Once a case is taken on, the costs will mount quickly. Again, this is due mainly to expert fees. A medical malpractice suit cannot move forward in litigation without a qualified expert opinion regarding the existence of malpractice. Without a qualified expert or experts, the court will dismiss the case without ever getting to trial.
These experts are almost always out of state. New Mexico doctors do not generally want to testify against other New Mexico doctors for any number of reasons. As a result, assuming the case does go to trial, the expert will have to be brought in from out of state to New Mexico for testimony. In the meantime, when the other side deposes the doctor (takes his or her deposition), there will be travel and lodging costs that go to the experts offices.
There are comparable costs related to the other side’s experts. As with supporting experts, the other side’s experts are likely to be outside New Mexico. As such, deposing the expert will again require travel and lodging. In addition, the party that deposes the expert must pay the experts hourly fees, which can be extremely costly.
There are many other costs as well that will begin to mount but these will typically pale in comparison to the expert fees.
So what does any of this have to do with lawyers not taking your case? Everything! Again, despite the myth of frivolous lawsuits and the fictional assault on doctors by lawyers, patients and juries, doctors get every benefit of the doubt with juries as juries typically just plain like doctors.
There are Damage Caps on Many Medical Malpractice Claims
More than that, there are often caps on damages in New Mexico where qualified healthcare providers are involved. This means there are strict limits on the amount that an injured patient can recover even if he or she does win. And the winning percentage of medical malpractice lawsuits is very low.
This means that these cases are very risky for attorneys. After all, if they lose, they do not get paid and they lose all the costs invested in the case. It doesn’t take too many of these to get a lawyer or law firm in a real financial bind. This would apply equally in cases where you actually win but recover less than the actual costs of the lawsuit.
The Costs and Risks Often Make it Hard for an Attorney to Take On Even Cases with Obvious Medical Negligence
So it may be that you have a very strong argument that medical negligence occurred in your treatment but the potential for recovery at trial is greatly outweighed by both the costs and risks of moving forward.
Although most attorneys practicing in this area would love to help every single patient injured by medical negligence, it simply is not possible. These cases have to be chosen with extreme caution.
This means, for our firm at least, that the great majority of these cases must be turned down not because there wasn’t any negligence involved but because the injuries and possible award of damages do not justify the expense of moving forward.
Having said that, it is important to talk to as many attorneys as possible. All attorneys have different evaluation criteria and it is very likely that if you persist and there was indeed medical negligence with injuries, you will be able to find an attorney willing to take your case.