After a patient has been caused injury by a medical professional or hospital, they will likely consider whether there's is a case of medical malpractice. Further, if it is medical malpractice, is it worth pursuing a lawsuit? There are a number of legal and financial considerations to be made when determining the merit and the economic implications of a medical malpractice lawsuit.
It is true that anyone injured by medical negligence has the legal right to file a lawsuit demanding compensation for their damages. However, medical malpractice lawsuits are expensive, and the damages may not justify the cost of investigating, preparing, and prosecuting a lawsuit against the doctor or hospital responsible.
The first thing that must be established is whether or not the case is meritorious. Whether or not a medical malpractice case has merit is determined by the legal elements required by medical malpractice tort law.
In order to have a valid medical malpractice case, it is necessary that the patient have suffered some kind of injury or damages. When a lawsuit is filed, it is demanding that compensation be paid for all the damages incurred. Without damages, there is nothing for which to seek compensation, thus nothing to sue for.
Another critical factor is evidence of medical negligence. This is proven through the discovery process, where a medical malpractice lawyer will obtain all the associated medical records, witness testimony and other evidence.
The third legal element required is a link that establishes the medical negligence contributed directly to the patients injury. Even if negligence took place and the patient suffered some type of injury, if the negligent care wasn't the cause of the injury then it is not a valid medical malpractice case.
Once the legal requirements have been established, and it's been shown that it is indeed a meritorious case, the money has to be considered.
In a medical malpractice case, the lawsuit is filed demanding compensation for all economic and non-economic damages. This is how the value of a medical malpractice case is determined.
It is important for a medical malpractice lawyer to take into consideration the value of any particular case, and weigh it against the cost of prosecuting the lawsuit. Even if a case is strong from a legal standpoint, it may cost more to prosecute the lawsuit than the award or settlement amount would be.
The math that determines whether or not to prosecute a medical malpractice lawsuit is pretty straight forward. There are three elements: Value of the case, cost to prosecute the lawsuit and attorney fees.
Generally, the attorney fees will be paid out of the settlement or award money, and will be a percentage based contingency fee of between 33% and 50%. Keep in mind, this is usually a percentage of the amount after the legal costs covered by the lawyer have been repaid.
Whether or not it would be worthwhile to file that lawsuit depends on whether or not the expected award would be enough to cover the cost of prosecuting the case, the attorney fees and still provide a large amount for the injured patient.
If: Value of the case > attorney fees + cost to prosecute + significant amount for patient
Then it is likely worth the cost of filing the lawsuit.
Determining how much money to demand in a medical malpractice lawsuit is a function of determining all the damages, calculating compensation for each and summing it up. Of course, only an experienced medical malpractice lawyer can determine how much to demand for each of the damages.
There are a few different types of damages for which a medical malpractice lawsuit will demand compensation.
Determining the value of a case requires placing a dollar amount on each of the relevant damages and summing them up. Obviously, some are much more complicated than others. Medical expenses and lost income are fairly simple, but how would you calculate future lost income? And what about pain and suffering, how can you place a value on that?
Only an experienced attorney can determine the value of a case, but generally, pain and suffering compensation will net the largest amount of money.