One of the hardest things I have to do in my job is tell people that they don’t have a case. It’s not hard professionally because I always give honest answers. But it can be hard personally since it’s heart-breaking to hear someone’s story of pain and then let them know that that there’s nothing we can do for them. I may be a lawyer, but that doesn’t mean I have no heart.
This happens most often with calls about medical malpractice. Even in Cook County, success rates for cases that go to trial are only 20% and that is considered very plaintiff friendly. Of course many cases settle, but that doesn’t change the fact that a ton of claims go nowhere.
I was speaking to a malpractice attorney in Chicago who I am friends with and he said that his law firm files a lawsuit in about one out of every 100 cases that they review. That’s true for most firms for many reasons. The biggest is that these cases are expensive to bring and if you don’t have clear cut negligence AND very big, permanent damages, the costs wouldn’t justify proceeding. It does allow many healthcare professionals to get away with mistakes and bad treatment.
My friend told me a great way that he explains to potential clients that they don’t have a case. It has to do more with the doctor screwing up, but not bad enough to make it a claim.
In general, you can’t successfully sue for something that is considered a general risk of a medical procedure. For example, if you have a surgery and get an infection, that’s not likely a case because it’s a risk of being cut open.
To bring a lawsuit, your lawyer needs to find a reputable physician who is willing to testify that the person who took care of you screwed up. My friend tells his clients that he can’t have a doctor review your records and give the treating doc a grade of a C- or even a D. It has to be an F minus. In other words, you need to review the treatment and say that what happened absolutely should not have occurred.
I wasn’t the best student in the world, but I wasn’t getting C minuses or D’s. But if I did you could say that I passed or did something right even if it wasn’t great. Well, if the insurance defense attorney can make that argument to a jury, then they are probably going to win or at least find one juror to side with them. You need a unanimous jury to win, so if one is against you that won’t happen.
Because most screw-ups are not F minuses, it explains why you might not be able to find anyone to represent you. Even if a failing grade appears, you still need catastrophic damages. All of this is why bringing and winning a suit is very difficult.
Please don’t read this post and assume that you have no case. There are exceptions to everything. Also, it doesn’t cost anything to talk to us and evaluate whether or not something can be done or not.