Why Many Medical Cases Never Reach the Courthouse Steps

Medical malpractice cases are some of the most challenging and difficult cases to handle in the world of civil litigation.  And the harsh reality is that most instances of medical malpractice never result in a lawsuit.  This reality is a difficult pill to swallow for many, and understandably so, but the law is swayed heavily in the favor of doctors when it comes to litigating medical negligence.  Here are three primary reasons so many victims of medical negligence never have their cases heard in court:

• They never know.  Many instances of medical negligence simply go undetected.  A patient may die at home after visiting the doctor, or even on the operating table, and the patient’s family may be led to believe the death was unavoidable or the result of something unrelated to the doctor’s care. Most people are inherently trusting of their physician.  After all, the doctor is the expert, and if he or she gives an explanation for a bad outcome that has nothing to do with the doctor’s care, the family may simply accept it at face value.
• The expert affidavit requirement. In a typical negligence case in Georgia, an injured party can bring a lawsuit based on a good faith belief that the discovery process will uncover evidence that proves the plaintiff’s case.  However, that isn’t the case for medical negligence cases.  A plaintiff suing a doctor in Georgia must file an expert affidavit with the complaint—signed under oath by another doctor—swearing that the defendant doctor committed malpractice.  Of course, to satisfy this requirement, the expert can only rely on the patient’s medical records and information provided by the patient or the patient’s family.  Neither the defendant doctor nor the defendant doctor’s staff can be compelled to testify prior to a suit being filed.  The upshot of this is that the defendant doctor’s negligence must generally be apparent from the medical records and the patient’s own testimony.  If the doctor’s negligence can only be established through the verbal testimony of his or her nurse or other staff member, that information will be unavailable to the expert prior to filing suit, and yet suit cannot be filed without that information.  As a consequence, Georgia’ expert affidavit requirement precludes many cases of medical negligence from getting to the courthouse steps.
• The damages don’t justify the costs.  The cost of litigating medical malpractice cases is probably the biggest factor in leaving injured patients without a remedy.  All medical cases require experts, and experts are expensive.  It is not unusual for a law firm to advance costs of $100,000 to $200,000 or more to advance a medical malpractice case to trial.  For this reason, cases that do not result in catastrophic injuries and substantial damages simply cannot be pursued for economic reasons.  Once a case is concluded, either through a settlement or judgment, attorney’s fees and out-of-pocket expenses are deducted from the plaintiff’s recovery.   This results in the harsh, practical reality that a patient who incurs, for example, $50,000 in damages due to a doctor’s obvious negligence may be left without a remedy.

If you or a loved one has suffered a significant injury due to possible medical malpractice, call Carroll Law Firm today for a free consultation.  We will help you overcome the challenges in pursuing medical malpractice cases and do everything in our power to help you recover compensation for your injuries.