The 3 Elements of a Medical Malpractice Case (And Why We May Not Be Able To Pursue Your Claim)

The most common request we receive from new clients is for representation on a medical malpractice lawsuit. In today’s world of complicated medical procedures, many people are legitimately injured, but unfortunately, we are forced to decline representation of a large number of those people.  In fact, we decline approximately nine out of ten cases that we review.  Here are 3 things we must consider before taking on a medical malpractice lawsuit:

First, the person bringing any lawsuit has the burden of proof “by a preponderance of the evidence.”  That means that you need to be able to convince a relatively random group of people from the community that – more likely than not – your case has merit.  Specifically, you need to be able to prove that the medical provider did something wrong – that the provider “deviated from the standard of care.” The “standard of care” is defined by what a reasonably well qualified medical provider with the same license and specialty (be it a physician, nurse, or other medical provider) would do. 

Unfortunately, it’s not enough to prove that the medical provider could have done something differently or better. A poor outcome – or even a horrible outcome – does not prove that the medical professional deviated from the “standard of care.”  

To the contrary: certain complications can arise even if the medical professional complies with the standard of care.  For example, I was surprised to learn that, in some cases, perforating the bowel during a colonoscopy may NOT be a deviation from the “standard of care.”  [However, failing to properly and promptly diagnose and treat the perforated bowel often is a deviation.]

Assuming that we can demonstrate a deviation from the “standard of care,” the second thing we must consider is whether we could demonstrate that the deviation caused a negative medical result (aka injury). 

In other words, it is not sufficient to demonstrate that the medical professional did something wrong and that there was an injury.  Instead, we must be able to demonstrate that the wrong caused the injury.  In almost all cases, we will need to hire a medical professional who will testify that, in their opinion, the injury would not have occurred if the medical professional had not deviated from the standard of care; or at least that the deviation from the standard of care was one cause of injury.

From there, we also must prove that the injury caused one or more of the elements of damages typically available under Illinois law.

These elements are: past and future medical bills; past and future lost wages; past and future loss of normal life; past and future emotional distress; and disfigurement.  This will require several additional witnesses. 

For example, we generally need a medical professional to testify that the medical treatment you received after the initial malpractice event was because of the negative result.  The at-fault medical provider would only be responsible for the cost of medical treatment that can be attributed to the injury that was caused by their malpractice. 

Another example: if you have had to take time off work due to your injury / condition, you may need a medical professional to testify that you had limitations that affected your ability to perform your job, causing you lost wages.  They would have to demonstrate that your time off of work was related to the injury that you sustained.  If you continue to be unable to work, a medical professional would also have to give an opinion as to how long your ability to work will be limited; and an economist would need to give an opinion as to how much income the injury will cost you and your family in the future.

As you can see, there are a lot of people that need to be hired to offer professional opinions in order to successfully pursue a medical malpractice case.  Sometimes you can hire one medical professional to testify regarding multiple elements of your case; but very rarely can you pursue a medical malpractice case with only one expert witness.  Each expert witness will cost thousands upon thousands of dollars.  That expense is in addition to the cost of taking the depositions of several of the medical providers, who actually provided medical treatment to you.  Not to mention a host of other litigation costs.  All told, a medical malpractice case will cost in excess of $100,000.00 in expenses alone.

In light of the fact that the attorney’s fees are one-third of the total recovery; and in light of the six figure expenses involved, we have concluded that it makes no sense to pursue cases that lack very extensive damages.  We never want to be in a position where the entirety, or even majority, of the settlement / judgment / award is consumed by attorney’s fees and expenses.  It is simply not in our clients’ best interest to pursue a case where they themselves would receive little to no recovery.  As such, we analyze the likely verdict range, and only accept representation when the likely net outcome for the client warrants pursuing the claim.

Unfortunately, the above factors prevent us from being able to represent every person who has experienced a bad medical outcome.  Instead, what we promise at The Tapella & Eberspacher Law Firm is that we will carefully review your case and give you our honest opinion as to whether we are likely to be able to successfully recover on your behalf.  It costs you nothing to set up a consultation to see if we can help. Call us at 855-522-5291 today.

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