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The Fundamentals of Medical Malpractice Litigation

Our law firm receives almost daily calls from potential clients seeking an attorney to assist them with a medical malpractice claim. Unfortunately, we probably reject 99% of these cases. Why? There are a myriad of reasons, including problems with liability, problems proving that the malpractice caused the plaintiff’s injuries, or the plaintiff’s damages might not be significant enough to justify filing a lawsuit.

Medical malpractice cases are maybe the most difficult type of lawsuit to litigate. The attorney litigating the case must not only be well versed in this area of the law, they must also become knowledgeable in the area of medicine involved.

Many potential clients think that just because they had a bad result after seeing a doctor, they have a good medical malpractice claim. Nothing could actually be further from the truth. A bad result does not necessarily mean there was bad medicine.

Every state has different laws in terms of what is required just to file a medical malpractice claim. Illinois is typical of many states that require a plaintiff to have an expert physician review the medical records before filing a lawsuit. If the expert believes there is a viable claim, the expert must draft a report stating that he or she believes the plaintiff has a meritorious claim and the reasons why. This report then must be attached to the lawsuit when it is filed with the court.

There are several elements to a medical malpractice claim. First, the plaintiff must prove the defendant doctor breached the standard of care for a reasonably well qualified physician in that particular field of medicine; second, the plaintiff must prove that the breach of the standard of care caused an injury to the plaintiff (also referred to as “causation”). And third, the plaintiff must prove up his or her damages such as medical expenses, lost wages, pain and suffering, and disability.

Proving what the standard of care is in a particular case and proving causation requires expert testimony. Some cases require the hiring of two, three, four, or more experts. This can get very expensive as each expert can charge anywhere from $400 to $1,000 per hour for their time in reviewing records, drafting reports, and testifying at deposition and trial. Each expert could end up costing anywhere from $10,000.00 to $50,000.00 or more in some cases.

Expert costs are not the only costs involved in a medical malpractice case. There are filing fees with the court, court reporter fees for each deposition and for trial, travel expenses, copying costs, and trial exhibits that can cost thousands of dollars.

After filing a medical malpractice lawsuit, defendants frequently file motions in an attempt to dismiss the case. These types of motions usually fail, but they are time consuming to respond to. During what we refer to as the discovery phase of the case, both parties exchange written discovery and take the depositions of witnesses. Depositions are where the attorneys have an opportunity to question witnesses, including the plaintiff and defendant. There are depositions of doctors and nurses who may have treated the plaintiff before and after the time when the malpractice was committed. Then there are the depositions of the doctors.

As you can see, the cost of bringing a malpractice claim and the time commitment involved on the part of the attorney, means that most attorneys will only take on cases where the damages are very significant. Also, medical malpractice attorneys handle these cases, as with all personal injury matters, on a contingency fee basis and they will front all of the costs. The fee is usually 33% of any amount recovered, plus the expenses.

Contact Friedman Law Offices, P.C. if you wish to discuss any potential medical malpractice or personal injury case that you might have.