How a Medical Malpractice Case Works

Personal injury attorneys get frequent calls from potential clients wondering if they have a viable claim for medical malpractice. The truth is, the majority of potential claims do NOT get through the attorney’s screening process.  That confuses some potential clients, but here is some background that might shed some light on this area of law.

Medical malpractice cases are difficult to win, costly to prepare and take to trial, and will routinely take years to reach a conclusion.  The defense is well-funded, and will likely force the vast majority of cases to trial.  Factors such as these mean that only the most egregious cases typically make it through the screening process.  In this setting, “egregious” means obvious negligence AND serious injury to the patient. medical malpractice

Medical Malpractice and Obvious Negligence 


Let’s start with obvious negligence.  If you or a family member had a bad outcome after surgery, you may be tempted to conclude that the surgeon did something wrong.  “I went in for a simple bunionectomy, and now my foot is even worse than before.  I think my doctor screwed up.”  Medicine is an inexact pursuit, and all patients respond differently due to different health histories and recuperative powers. Before any surgical procedure, there is typically an informed consent discussion/form advising the patient that positive results are not guaranteed. A bad outcome does not mean there was negligence, and could just as likely be the result of bad luck rather than bad medicine. 

After the surgery, did a different physician meet with you and comment that the first doctor might have botched things?  That’s helpful but still not conclusive because health care providers are often allowed some discretion in how they operate.  So the fact that Doctor #2 wouldn’t have operated the same way as Doctor #1 does not mean that Doctor #1 fell below a professional standard of care.  So a strong malpractice case has “obvious negligence,” something even a layperson could tell was outside the bounds of any professional discretion.  Operating on the wrong knee is a great example of obvious negligence.  

The next required element is “serious injury” flowing from the health care provider’s negligence.  Even where there is obvious negligence, the additional requirement of “serious injury” is a critical matter of economics.  In a malpractice case, the cost in medical experts to testify at trial and other litigation expenses is typically very high.  If the injury to a patient is not substantial, trial costs would eclipse any predicted verdict and leave the injured patient with no meaningful recovery after a long legal battle. 

Examples of Medical Malpractice and Negligence

Take this example - A patient goes to the hospital for appendicitis and has to undergo emergency surgery.  A day later, while recovering, the staff comes into the patient’s room and advises that a review of an x-ray shows that the surgical team left a sponge in the abdomen when they sutured the patient. The patient is advised that they will have to undergo another procedure to retrieve the sponge.  By the time the patient calls an attorney to inquire about medical negligence, they are home from the hospital, back at work, and doing well.  Was there obvious medical negligence?  It would appear so.  Was there serious injury as a result? It would NOT appear so.  Yes, the patient is justified in being upset at the care rendered.  But the brief second procedure to retrieve the sponge without further complication to the patient would not generate the significant damages necessary to justify an expensive multi-year malpractice lawsuit. 

On the other hand, if negligence has led to long-term physical misery for the patient, accruing medical or other care expenses into the future, or a required change in employment due to physical limitations, the case may meet the “serious injury” element.                      

If you think you might have a malpractice claim against a health care provider, by all means, pick up the phone. But understand that your case will go through a screening process of the type detailed above.    

Howard Simcox
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Gaithersburg Personal Injury Attorney
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