Acceptable Malpractice

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Medical malpractice is the third leading cause of death in the United States after only heart disease and cancer. As we previously discussed here, medical malpractice far outpaces COVID-19 in terms of deaths per year in this country.

You would think medical malpractice would, accordingly, be an enormous source of litigation in the country. However that is not true. To the contrary, medical malpractice accounts for less than 1% of lawsuits filed in this country.

Why is that so? There are a number of reasons but the largest, by far is the economics of medical malpractice and what I call “acceptable malpractice.”

For starters you should understand we pursue very few medical malpractice cases. As an industry, plaintiff attorneys accept 1 of every 37.5 cases we review. This is because medical malpractice cases are very difficult, and expensive to pursue.

The “most basic” medical malpractice case will cost between $50,000 – $100,000 to pursue to trial. Most cases will have expenses of between $100,000 – $200,000 to get to trial and many cases have expenses well north of $300,000.

By “expenses” please understand I simply mean costs. Not attorney fees; costs. The costs of experts, court costs, depositions, etc. The hard costs of pursuing a medical malpractice case is prohibitive.

This is where the concept of acceptable malpractice arises. To pursue a medical malpractice case you need to prove 1) a violation in the standard of care (i.e. medical malpractice) and 2) damages. Damages is effectively the injury to the injured party.

In many cases we review we could prove step 1, that there was medical malpractice, but the damages do not justify pursuit of the lawsuit. Let me give you an example. Let’s say you go in for gall bladder removal surgery. The surgeon removes your gall bladder but negligently cuts your bile duct. They discover the mistake two days later and the surgeons have to go back in, do another surgery to repair the damaged duct, and you spend an extra three days in the hospital.

You have been damaged because they cut your bile duct and you had to undergo an additional surgery, but the cost of pursuing that case does not justify the potential recovery. If you win that case in front of a jury what is a jury going to award you? $10,000? $20,000? You had to undergo another surgery and a few extra days of recovery but other than that you are fine.

Understanding it will cost at least $50,000 to get the case to the jury we, plaintiff attorneys, can not pursue that case in court. The economics do not work. Add on top of that the statistic that doctors/hospitals generally win over 82% of all cases that go to jury verdict and the economics tilt even more in favor of not pursuing the case.

So we are left with telling someone, “sorry, the doctors committed medical malpractice, but there is nothing we can do about it.” This is acceptable malpractice – medical malpractice which occurs every day in this country but for which people are left with no remedy.

The attorneys at McCarthy, Winkelman & Mester, L.L.P. can help if you were injured by medical negligence. Our lawyers can provide knowledgeable guidance about protecting your rights. To set up a free consultation, call us today at 301-262-7422 or complete our contact form.

Written by Michael J. Winkelman


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