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Each case is unique and needs to be considered on its own particular merits and details. But there are certain issues your lawyer will have to work through before deciding to accept your malpractice case.
Since malpractice cases are so expensive and time consuming to pursue, one of the first questions your lawyer will consider is whether the case is economically justifiable. Very few malpractice cases are settled early, so depending on the nature of the case a lawyer may spend as much as $50,000 to $200,000 in out-of-pocket expenses, plus two to three years’ time on a single malpractice case. If a potential case only involves the temporary misdiagnosis of a medical condition, and the correct diagnosis was eventually made with no significant permanent injuries, then that is not a good case to pursue. No lawyer would want to risk two years of their time and $200,000 of their money on the possibility that they might recover $25,000 for his client. No client should reasonably want to pursue that type of case either. Although it is admirable to bring malpractice cases out of principle and to protect future patients from injury, the case still has to pay for itself or it is a loss, not a victory.
Assuming the damages are serious enough to justify bringing suit, the lawyer must also determine if there is liability, i.e., whether the action or inaction complained of fell below the professional standard of care. The lawyer will most likely have to hire one or more doctors as expert witnesses to testify on this issue. At least one medical expert must be hired before the suit is ever filed, and additional experts are often hired before the case proceeds to trial.
The expert witnesses will also help establish that the negligent conduct was the actual cause of the injuries complained of. Sometimes this is obvious, and sometimes not. For example, in cases involving negligent delay in the diagnosis of breast cancer, it may be easy to establish that the defendant misread a mammogram, but very hard to establish that the patient would have survived if only the cancer had been diagnosed three months earlier. Complicated medical questions arise such as, what type of breast cancer was this? What was the grade? What size was it? What was the cancer cell doubling time? How far had it already spread when the misdiagnosis occurred? This issue of whether the alleged negligence actually caused any injury to the patient, and if so, then how much injury was caused by the negligence and how much was caused by the preexisting medical condition, is the main focus of many malpractice cases.
In Florida, lawyers are required to certify in writing at the time they file a malpractice lawsuit in court that they have made a reasonable investigation of the case and have come to a good faith belief that there is a reasonable basis to file the claim. If the judge later determines that the lawyer did not have a reasonable basis to believe the case was meritorious, the judge may enter sanctions against the lawyer, including requiring the lawyer to personally pay the other side’s attorneys’ fees.
