Almost every day I receive at least one call from a frustrated patient who suffered an injury from negligent medical care and who tells me they have called numerous law firms and don’t understand why the lawyers won’t take on their case. Not surprisingly, the claim described in those calls is one that I also will turn down, so I try take the time to explain the realities of medical malpractice lawsuits. Sometimes the callers are grateful that I am taking the time to explain my decision, but others get angry and accuse attorneys of “just being in it for the money” or being somehow in collusion with the doctors.

Some of the claims are ones that can’t be financially justified. A dispute about whether a particular bill is justified may involve several thousand dollars, but a law firm would spend many times that amount to prepare a claim and prove the allegation. In reality, in most cases where a patient had a very bad experience but has had a good recovery, the potential settlement or verdict amount would also not justify the costs and risks of litigation. To someone who spent several weeks in the hospital, had a great deal of pain, and huge medical bills, it is not pleasant to hear that their injuries are not serious enough to justify a lawyer’s involvement, but that is the unpleasant reality of our legal system. Justice is sometimes achieved in our civil justice system, but not achieved at low cost or low risk.

I explain to these callers that expert witnesses are required in almost all medical cases, and that their charges can be very high. I also explain that, if the claim is denied and a trial is needed, the statistics on prevailing are very bleak: fewer than 10% of cases going to trial result in a verdict for the claimant. So unless their case involves clear-cut or admitted liability and/or serious permanent injury or disability, it is difficult to financially justify the very large costs needed to bring a lawsuit. I tell them that, in most cases, the attorney is “fronting“ the thousands of dollars needed to prosecute the case and it may be a year or more before the case resolves and the attorney may see those costs repaid. I also tell them that, during the time their case is being processed through the legal system, the law firm is continually expending money on the overhead needed to keep the firm’s doors open, including the expenses of highly-trained staff who are handling the case.

It is common for callers to tell me “it’s not about the money, but there should be accountability and others shouldn’t have to go through why happened to me.” I express my agreement with that view, and my appreciation for their wanting to help others, but I point out that we are only able to sue for money damages in our tort system, and unless those damages are substantial and there is a reasonable possibility of a favorable outcome, most lawyers can’t afford to take on the case.

I usually end the calls by telling them I’m sorry that we, and the other attorneys they spoke with, are not able to take on their case. I usually refer them to the state agencies, such as the Department of Health and the Medical Quality Assurance Commission, that license and regulate health care providers, so that they can make a complaint about the care that was provided to them. It’s not what they hoped for when they called, but often they thank me for that information. I never know whether they will continue to call other attorneys to find someone to take on their case, but if they are unsuccessful at least they have a better understanding of why their case may be denied.