It’s a common question asked by the many people who contact our office on a regular basis “Do I have a medical malpractice claim?” and “How do I know if I have a medical malpractice claim?” The question is perhaps better stated as “How do I know if I have a good medical malpractice claim?” The answer is far more complex but can be answered succinctly “You don’t know until you contact an experienced medical malpractice attorney”.
“How do I know if I have a good medical malpractice claim?”
- Contingent fee representation is damage driven. This means that when a Miami FL medical malpractice lawyer accepts a case on a contingent fee basis the potential gross recovery must be large enough to cover the fees, cover the substantial costs (among the highest in the personal injury realm), reimburse all of the required reimbursements to health care insurers (Medicare, Medicaid, ERISA health plans, etc.), and provide a reasonable net recovery to the injured patient. Many clear cases of medical negligence never result in a claim because the case is not economically feasible to pursue, i.e. it will not provide a reasonable net recovery to the injured patient and fairly pay the lawyer for the risk of work on an “if come” contingent fee basis.
- Does the negligent health care provider have the financial responsibility to pay the claim? If a doctor is uninsured or underinsured for the injury the hope of collecting fair compensation becomes highly unlikely given all of the protections against collection of a judgment that the legal system affords them (assuming they even have the assets to try and collect against).
- Is the injury large? Is the injury permanent? Has the injury resulted in any significant economic loss? This brings us back again to point one- will the recovery be large enough to justify the economics of the case.
- Is the injury clear medical malpractice or just an unfortunate but known complication? Most known complications are just unfortunate bad results and not medical negligence.
- How many other medical problems does the patient have that can cloud the proof that the injury was more likely than not caused by any medical negligence?
These are five of the first factors that must be answered in deciding if someone has a good medical malpractice claim. The list is not exclusive, but are considerations in every inquiry that we evaluate.
Thanks to our co-contributors from Needle & Ellenberg, P.A. for their insight into understanding medical malpractice.