Understanding Personal Injury Law

Two Things That Can Hurt Your Chances Of Filing A Medical Malpractice Claim

12 June 2016

Celina Nichols

Lawsuits in general can be challenging to litigate, but medical malpractice claims can be even more difficult to bring to court. Here are two roadblocks you must overcome before you can even file a claim and what you can do to get around them.

Showing the Case Has Merit

One of the major hurdles you may run into is proving your case has merit. A number of states require litigants to prove there are reasonable grounds the medical professionals acted inappropriately. The proof must be provided via an Affidavit of Merit written by a neutral expert who either works in the same field as the medical professional or has extensive knowledge about what the standard of care is in that aspect of medicine.

The purpose of this particular requirement is to reduce the number of fraudulent or frivolous lawsuits brought against healthcare providers. As such, states that implement this requirement tend to be very strict about it, so it may be hard to avoid. However, sometimes states will have a list of circumstances where an Affidavit of Merit is not required. For instance, you don't need to show merit in Delaware if you're suing because a foreign object was left in your body, surgery was performed on the wrong body part, or explosions or fires occurred during treatment.

Other states let you proceed with the case if you pay a deposit to cover court costs. For instance, you can continue litigating your case if your Affidavit of Merit is rejected in Massachusetts as long as you pay a $6,000 bond.

Research the laws in your area to find workarounds that may help you get around an Affidavit of Merit requirement.

Reluctant Legal Help

Another obstacle you may face is some attorneys may be reluctant to take your case. The average medical malpractice lawsuit costs $20,000 to $50,000 to litigate. However, the cost can go as high as $100,000 or more depending on the complexity of the case.

Most attorneys take malpractice lawsuits on a contingency basis, meaning they only get paid if you win. The reality is, though, many lawyers will typically only take cases that are likely to result in settlements or court judgments for the plaintiffs and will net enough money to cover their expenses and fees. You may have a hard time finding an attorney to help you if your case lacks one or both of these elements and you don't have enough money to pay the lawyer's hourly rate upfront.

If the reason an attorney won't take your case is because it's just not strong enough to win, ask what you can do to strengthen it. Sometimes you may need to acquire more evidence. Other times, you may need to change your legal approach. Instead of suing for medical malpractice, for instance, you could sue for product liability lawsuit if malfunctioning medical instruments contributed to the problem.

If money is the issue, discuss alternative payment options. For instance, paying some money upfront and providing the rest on contingency may make the attorney feel more confident about taking the case.

For more information about suing for medical malpractice, contact a personal injury attorney or law firm like Burke Schultz Harman & Jenkinson Attorneys at Law. 

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