How To Find a Medical Malpractice Lawyer
Medical malpractice cases can be some of the most complex and challenging legal claims. If you’ve suffered an injury due to what you believe was medical negligence, it’s natural to feel frustrated when lawyer after lawyer declines your case. It may leave you wondering: Why is it so difficult to find legal representation for something so serious?
1. Medical Malpractice Cases Are Extremely Complex
Medical malpractice cases are not your average legal disputes. They sit at the intersection of medicine and law, requiring lawyers to understand not only legal principles but also detailed medical concepts. To prove your case, an attorney needs to demonstrate:
- A healthcare provider failed to meet the standard of care.
- This failure caused a specific injury or worsened an existing condition.
- The harm resulted in significant damages, such as medical bills, lost wages, or pain and suffering.
Establishing these points often involves wading through medical records, consulting with experts, and understanding the intricacies of the medical field. Lawyers must ensure the case meets a high legal standard before even filing a claim.
2. Cost of Litigation
Medical malpractice cases are expensive to litigate. Lawyers who take on these cases often do so on a contingency basis, meaning they only get paid if you win or settle. This arrangement puts significant financial risk on the attorney.
The costs associated with these cases can be staggering. Medical experts, whose testimony is often the backbone of a malpractice claim, charge thousands of dollars to review records, write reports, and testify. Additional costs include court filing fees, depositions, and gathering evidence. For a lawyer, the financial burden can climb into the tens or even hundreds of thousands of dollars before the case is resolved.
3. High Burden of Proof
The burden of proof in a medical malpractice case is particularly challenging. You must prove that the healthcare provider deviated from accepted medical practices and that this directly caused your injury. However, bad outcomes alone don’t always equal malpractice.
For example, if a surgery doesn’t go as planned but the surgeon followed standard protocol, the case may not qualify as negligence. Lawyers need to be confident they can prove the case beyond doubt, as juries often give doctors the benefit of the doubt.
4. Caps on Damages
Many states have caps on the amount of money you can recover in medical malpractice cases. These caps apply to non-economic damages, such as pain and suffering. While caps vary, they can significantly limit the potential payout in a case.
The New Hampshire Supreme Court in 1979 ruled that the cap on damages in medical malpractice cases was unconstitutional and therefore New Hampshire has no such cap. However, New Hampshire law does not permit punitive damages on most cases, including medical malpractice cases, which is an alternative limitation on the damages award. While New Hampshire law does sometimes allow “enhanced compensatory damages” as an alternative to punitive damages, the standard for obtaining such damages is more challenging.
For an attorney, this means potentially taking on a high-risk, high-cost case with a limited financial reward at the end. If the damages don’t outweigh the costs of litigation, lawyers may decline to take the case because it isn’t financially viable.
5. Statute of Limitations
Every medical malpractice claim must be filed within a specific timeframe, known as the statute of limitations. In New Hampshire, you generally have three years from the date of the injury to file a claim. However, there are exceptions, such as cases involving delayed discovery of harm.
If you approach a lawyer close to or after the statute of limitations, they may feel there isn’t enough time to investigate, gather evidence, and file the claim properly. The tighter the timeline, the less likely they are to take on your case.
6. The Role of Expert Testimony
Expert witnesses are essential in medical malpractice cases. These are typically healthcare professionals who can review your medical records and testify whether the standard of care was breached. However, securing an expert isn’t always straightforward.
Experts are costly, and their availability can be limited. Furthermore, not every expert will support a malpractice claim. If an expert review doesn’t indicate a clear deviation from the standard of care, a lawyer might decide the case isn’t strong enough to proceed.
7. The Emotional Toll of the Case
Medical malpractice cases are emotionally charged for all parties involved. For plaintiffs, the process can reopen painful wounds, both physical and emotional. Lawyers must consider whether you, as the client, are prepared to withstand what could be a long and grueling process.
The emotional nature of these cases can also impact juries. Many jurors are hesitant to rule against doctors, especially if they believe the doctor was acting in good faith, even if they made a mistake. This potential bias makes it harder to win a case.
8. High Rate of Dismissals
Many medical malpractice claims are dismissed before they even reach trial. This can happen for various reasons, including insufficient evidence, failure to meet procedural requirements, or lack of causation between the alleged negligence and the injury. Lawyers often weigh the likelihood of dismissal when deciding whether to take on a case.
9. Limited Resources for Smaller Firms
Large law firms with extensive resources may be better equipped to handle medical malpractice cases. Smaller firms or solo practitioners may lack the financial backing or staff needed to take on such demanding cases.
If a lawyer doesn’t feel they have the capacity to handle your case effectively, they may decline rather than risk doing a disservice to you.
10. It’s Not Personal
If multiple lawyers have turned you down, it’s important to remember that this isn’t a reflection of your character or the validity of your experience. Lawyers must assess cases based on their likelihood of success and the resources required to pursue them. A refusal doesn’t necessarily mean you don’t have a case—it may mean that the right lawyer hasn’t seen it yet.
What You Can Do
If you’re struggling to find a lawyer, here are some steps to consider:
- Gather Your Records: Having detailed and organized medical records can make it easier for a lawyer to assess your case.
- Seek a Second Opinion: If a lawyer turns you down, ask why. Their feedback might help you refine your approach.
- Consult Specialists: Look for lawyers who specialize in medical malpractice. They’ll have the expertise to evaluate your claim.
- Be Open to Mediation: Not all cases need to go to trial. Mediation or negotiation might lead to a resolution without the added costs of litigation.
While it can be discouraging, persistence is key. Finding the right attorney for your medical malpractice case takes time, but with careful preparation and determination, you can increase your chances of securing representation and obtaining justice.
How to find a medical malpractice lawyer