Winning a Medical Malpractice Lawsuit: Challenges and Difficulties

Medical malpractice resulted in $3.3 billion in payouts in 2012, and a majority of payouts are settlements that don't go to trial. Lawyers that are tackling their first medical malpractice claim need to know that juries support hospitals and doctors.

Cases are difficult to win.

Yes, there are often headlines of million-dollar settlements, but these headlines fail to note all of the lawsuits that go in favor of the doctor or hospital. When proving medical malpractice, it must be shown that the:

• Doctor was negligent
• Hospital was negligent

And this may not be as easy as it sounds. Let's say a doctor followed protocol, but the doctor missed the underlying cause of an illness. It must be proven that another doctor, with the same level of training and experience, would have taken a different course of action.

There's also the issue of the different course of action not resulting in a better overall outcome.

Diagnostic errors are one of the leading causes of medical malpractice, but if all of the protocols were followed, the case may go in favor of the doctor or hospital.

Doctors spend a lot of time meeting documenting needs to comply with laws and regulations. This documentation is what lawyers have to rely on when trying to prove negligence. Lawyers will have to rely on the notes of the doctor to prove negligence.

These notes may be:

• Self-serving
• Cryptic

Medical experts must be called upon to determine what the doctor did and what should have been done. If the doctor followed standard protocol but the patient still became injured or hurt, experts may not have recommended a different course of action.

Experts will need to rely on their own experience and medical textbooks which may list multiple treatment options for a disease, illness or injury.

But then comes the challenge of convincing the jury that the doctor was wrong in his or her actions. Jurors often don't know what steps were missed or could have been taken to avoid malpractice. Much like a patient, a juror will listen to the advice and expertise of the doctor.

The truth is that doctors do the best they can for their patients, but there are always times when the outcome is not favorable.

Lawyers for the plaintiff will also need to deal with:

• Complex medical evidence
• Pressure from insurance companies
• Medical experts
• High litigation costs

It's not always easy to determine if a doctor or hospital was negligent in their actions. A case that may seem like a cut-and-dry case may be much more complicated than a person assumes. Even if all of the evidence is in favor of the plaintiff, this doesn't mean that the case is a sure-fire win.

Instead, there's always a chance, even when a lawyer is sure that the case will be won, that the juror will feel differently.

The end result? Medical malpractice is a very difficult, hard-to-win area of law that involves complexities and jurors that often favor the defendant.