Show plaintiff's lawyer claim not worth pursuing
Show plaintiff's lawyer claim not worth pursuing
Facts often weaker than expected , according to analysis of claims
Claims involving medical malpractice across specialties are dismissed by the court about 55% of the time, according to a study that analyzed claims litigated from 2002 to 2005 throughout the United States.1
"Even more interesting is that only 4.5% of the claims were decided by a trial verdict, [and those verdicts] favored the physician nearly 80% of the time," says Traci L. Martinez, JD, an attorney in the Columbus, OH, office of Squire Sanders (US). "About 40% of the cases are settled between the parties."
If 95% of cases against physicians never make it to trial, why do attorneys put so much work into filing them? "While there is no single answer, an attorney may simply pursue the claim because he or she only has one side of the facts or allegations," says Martinez.
An attorney might not realize the facts of the case aren't as strong as he or she thought without expending time and energy filing a claim and going through the discovery process. Attorneys understand that the defense also is incurring costs, adds Martinez. If there are enough facts to raise the possibility that the case will not be dismissed, attorneys might pursue it in the hopes of getting a settlement for their client, she says.
"Sometimes, when an attorney is far down that path, he or she may feel that too much time has been invested to simply voluntarily dismiss their case and will go forward hoping it will not be dismissed by the court," she says.
Opportunity to respond
If the defense can show that the physician's method of treatment was not out of the ordinary and/or that the treatment done was specifically chosen by the patient with full knowledge of the risks, they might be able to demonstrate early to the plaintiff's attorney and the client that the claim is not worth pursuing, says Martinez.
"Sometimes an attorney will first send a demand letter to the physician outlining the alleged negligence and resulting harm prior to filing the lawsuit," she says.
The physician defendant, through his or her attorney, can show the opposing counsel that there is no basis to the claim by attaching the patient consent form, reputable medical articles regarding the same procedure, and/or case law with similar allegations in which the plaintiff's claims were dismissed by the court, says Martinez. "This is an opportunity for the physician to respond to the allegations and demonstrate that the plaintiff will have a difficult road ahead trying to demonstrate that the evidence will meet the legal standard," she says.
The defense also can put forth information showing that the degree of injury and amount of damages ultimately are insignificant. Unless the medical expenses are very high and the period of suffering long, it will not make economic sense for the attorney to purse the claim, says Martinez.
"There are some responses to demand letters where we send absolutely nothing, because we know the opposing counsel and sending over material will not make a difference," she says. Also, relaying too much information early in the litigation could be risky because it indicates the physician's defense strategy, adds Martinez.
"However, there are some cases where you just know the attorney does not have all the facts," she says. "A detailed response can cause him or her to rethink their representation of the case, or make the case ripe for a nominal settlement offer if that makes economic sense."
Reference
- Jena AB, Chandra A, Lakdawalla D, et al. Outcomes of medical malpractice litigation against US physicians. Arch Intern Med 2012; 172(11):892-894.
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