The Economics of Medical Negligence Litigation

As a medical negligence lawyer, I am frequently tasked with explaining to a potential client that their case is not worth enough to warrant the time and expense associated with medical negligence litigation. This is a difficult conversation have, especially when the individual has been through a significant ordeal or subject to unnecessary surgery, unnecessary pain and suffering and/or unnecessary medical costs.  Unfortunately, medical negligence lawyers face the stark reality that an individual either has to have a clear-cut case of medical malpractice or catastrophic damages and an otherwise meritorious claim.

There are three factors that drive the economics of medical negligence litigation: cost, time and risk. Costs associated with medical malpractice litigation have skyrocketed in recent years. When I first started to practice as a medical negligence lawyer, I estimated for potential clients that the costs of litigation for each case would be between $25,000 and $50,000. Now, in 2020, I estimate that the expenses associated with each case will reach between $75,000 and $150,000. The main reason for the increase in cost is that medicine is gotten more complicated, such that most cases involve the need for multiple experts. These expert witnesses can charge anywhere between $5000 and $50,000 for reviewing records, reading deposition transcripts, preparing for trial and testifying at trial.

Another compelling factor is risk. According to the Ohio Department of Insurance, for example, the defendants in medical negligence litigation, hospitals, doctors and nurses, prevail at trial 77% of the time. That means that the plaintiff, or patient, wins only 23% of the time. In the vast majority of cases, the medical negligence attorney advances the costs of litigation. So, if the medical negligence lawyer loses roughly three out of four cases at trial, they must recoup those losses through settlements and the one on the four cases that they win at trial. Small value cases will not make up for the many losses that the lawyer will face along the way.

Finally, the time associated with medical negligence litigation is substantial. If a medical negligence lawyer were to provide legal services for an hourly fee rather than litigate medical malpractice lawsuits on a contingent fee basis, they would charge $400 to $800 per hour depending on experience, skill level and geographic location. Applying the value of the lawyer’s hourly rate to the time put into labor-intensive medical malpractice lawsuits would add up to $30,000 to  $100,000 per lawsuit. Again, winning a small dollar lawsuit or settling a small case will not fairly compensate for the many hours that the medical negligence lawyer will put into a particular case.

Unfortunately, these prevailing economic forces require medical negligence lawyers to carefully choose which cases they will be involved in. These economics largely limit the plausible cases to those involving catastrophic injuries like amputation, paralysis or permanent brain injury. Skilled and experienced lawyers will handle smaller value cases only when the negligence is relatively clear, such as wrong site surgery or retained foreign object cases. However, there is no such thing as a “slam dunk” in medical malpractice litigation. ‌If‌ ‌you‌ ‌have‌ ‌questions‌ ‌about‌ ‌a‌ ‌case,‌ ‌contact‌ ‌a‌ ‌personal‌ ‌injury‌ ‌attorney,‌ ‌like‌ ‌‌Mishkind‌ ‌Kulwicki‌ ‌Law‌ ‌Co.,‌ ‌L.P.A‌.,a‌ personal‌ ‌injury‌ ‌attorney‌,‌ ‌for‌ ‌advice.‌ ‌