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Top 3 Reasons Medical Malpractice Cases are Turned Down by Lawyers

By Burg Simpson

June 26, 2013   Colorado Blog, Colorado Medical Malpractice

It can be frustrating when the firm you contacted to evaluate your medical malpractice claim does not provide an explanation for why they decided not to take your case. Usually if you follow up and ask the firm why they have decided not to represent you, they will provide the rationale. There are many common reasons why cases are turned down, but it would be too long a list to describe them all fully here. Instead, the three most common reasons are described in more detail below.

#1: Damages are less than or equal to estimated costs of litigation.

To win a malpractice suit, the plaintiff must prove there was substandard care (a “standard of care violation” creates liability), and that this substandard care caused the plaintiff’s injuries and losses (causation) and then must prove the value of the injuries and losses (damages). These elements of the claim must be proven by a preponderance of the evidence—more likely than not—51% versus 49%. (Note the difference between this civil burden of proof and the criminal burden of proof (beyond a reasonable doubt)).The amount of those damages, in dollars, must exceed the costs associated with litigation in order for the plaintiff to get a recovery from the lawsuit.

Most malpractice suits are handled on a contingency basis, meaning that the lawyers do not get paid unless there is a recovery for the client. From that recovery, the lawyer’s fee is subtracted, and then the costs advanced by the lawyer must be repaid from the plaintiff’s share of the recovery. Most cases will also involve one or more liens from the plaintiff’s insurance carrier, and these too must be paid from the plaintiff’s share of the recovery.  If paying the attorneys’ fees, costs, and liens would leave the plaintiff with little to no money, that is obviously not a good outcome for anyone (including the lawyers, believe it or not). Experienced medical malpractice lawyers should have an idea of how much a case will cost in terms of expenses as well as a general idea of what the case will be worth, and can usually do a rough analysis of these numbers very early in the investigation.

Medical malpractice litigation is difficult, expensive, and time consuming. Multiple experts are usually required to prove a claim, and the complexity of the medical issues in this sort of case means that the lawyers have to do significantly more work on this type of claim than on an ordinary personal injury case. The value of a claim can vary widely according to the jurisdiction in which you are located. Many states have imposed caps on damages, and depending on the specific circumstances of your claim, those caps can operate as a bar to proceeding with a plaintiff’s claim in the area of medical malpractice.

The value of the claim should not be confused with the value of your injury, or the value of you as a person or your life in a general sense. The civil litigation system cannot value people or injuries, and so it is really just a system of rules that dictate how much compensation a person can receive under particular circumstances. Sometimes the results of these rules are unfair, but such is the nature of the system. If the rules operate to make your claim’s value relatively low as compared to its costs, most reputable medical malpractice attorneys will not take on the claim.

#2: There are good defenses to alleged violations of the standard of care.

Sometimes in medicine, bad things happen. Bad outcomes are not necessarily the result of substandard care. In fact, as it turns out, most bad outcomes are not the result of bad medical care. Medicine is not an exact science, and therefore, much of what physicians do on a day-to-day basis is use their best judgment. When a physician chooses between a range of acceptable treatment options and a bad outcome occurs—even if hindsight demonstrates that a different choice would have had better results—that judgment call will not be considered malpractice.

Sometimes the things we think, as laypeople, seem like bad medical decisions are really well founded and within accepted standards of medical practice. For example, consider the example of a patient who develops chest pain while admitted to the hospital for some other problem. The hospital’s thorough treatment of that chest pain includes giving certain medications that inhibit blood clotting. Later, when traditional treatments do not work to alleviate the chest pain, doctors perform a cardiac catheterization. Unfortunately during the procedure, the patient’s artery is perforated and she bleeds to death because of all the anticoagulants she had been previously given. It is a sad outcome, definitely, but not malpractice. The doctors in that situation had to treat the condition with which they were presented, and it would have been malpractice to withhold those medications from a patient who needed them. We cannot judge the doctors with the benefit of hindsight and say that they should have known the medications that were appropriate when given would later cause a problem. The physicians’ conduct will be judged according to the facts and circumstances at the time their decisions were made.

Nor is it malpractice to perform cardiac catheterizations in a hospital that is not immediately capable of open heart surgeries. This means that sometimes patients do have to be transferred from the cath lab to another facility for open heart surgery, and sometimes those transfers have to be done emergently. Nevertheless, it is not malpractice to operate a cath lab in the absence of an operating room and staff capable of open heart surgery. The point of these examples is to demonstrate that the standard of care is often not what we, as lay people, believe it ought to be. The standard of care is circumstance-specific, and is decided using a “reasonable physician test.” It is that bright line below which reasonable physicians would not fall in their medical decision making. To show substandard care, we must prove that the care was unreasonable at the time it was given, not later with the benefit of hindsight.

Many medical malpractice claims are frequently turned down because the medical decisions, while they may not have provided a good outcome, were not unreasonable when made, and therefore, a violation of the standard of care cannot be proven by a preponderance of the evidence—the legal burden in civil claims.

# 3: There are good defenses to causation.

Similarly, even when bad care can be proven, that bad care must have been the actual cause of the bad outcome over which the defendants are being sued. Another example is instructive: consider a lady who complained of increasing abdominal pain, fullness, and a growing lump in her belly over a period of many months. Her doctor routinely ignored the complaints and told her she was just getting older and not to worry about these issues. Many months later, by chance, she saw another provider. This doctor instantly recognized the possibility of cancer, and initiated an appropriate work-up. Cancer was quickly diagnosed and she was given just a few months to live. Of course this was terrible care by the first doctor in ignoring her ongoing complaints instead of investigating them. However, now assume that the cancer doctors all testified that even if this particular type of cancer had been diagnosed on day 1 of its growth, before any symptoms were even present, the outcome would not have changed because this particular type of cancer was always inoperable, and always going to be fatal, and there was no treatment available that would have prolonged or saved her life. In that example, causation is lacking, because the first doctor’s bad medical care did not change this patient’s outcome. A medical malpractice lawsuit would fail for this reason.

Cases are frequently turned down for reasons relating to causation. These issues are sometimes difficult for lay persons to immediately recognize or understand, and it can be very frustrating for potential clients to accept that bad care was given and a bad outcome resulted, but there is no legal claim to pursue. It sometimes takes significant investigation for a lawyer to discover that causation cannot be proven, depending on the complexity of the medical issues involved.

There are a variety of other legitimate reasons why medical malpractice claims may be turned down by lawyers. If you have a claim that was evaluated and turned down by a lawyer, YOU SHOULD SEEK ANOTHER OPINION. Lawyers, like doctors, often have differing opinions about things. Do not be hesitant to ask the declining lawyer if they could recommend another firm for you to get another opinion. We always provide referrals upon request, and encourage potential clients to seek another opinion, especially if they have difficulty understanding why we have decided not to undertake representation. A reputable lawyer should not hesitate to recommend other qualified medical malpractice attorneys for you to call.

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