In Determining When Your Medical Malpractice Case Has Merit, expert witness Barry E. Gustin, MD, MPH, FAAEM, and primary founder of the American College of Forensic Medicine, writes on strategy in medical negligence cases.
To summarize … consider not taking medical negligence cases in the following instances:
1. The medical issues are complex. The more complex the medical issues, the more difficult it will be to convince the jury that the doctor committed malpractice. If a case involves multiple physicians, some of whom committed no negligent acts, it may be exceedingly difficult to separate out the truly negligent care. Jurors may view this kind of lawsuit as an unwarranted attack on everyone. Plus the more doctors who are involved, the more costly the undertaking, in terms of obtaining more medical experts.
2. The patient underwent a medical procedure for cosmetic rather than medical reasons. Jurors often believe that these people are vain and that they assume all the risk of a bad outcome.
3. The plaintiff’s condition is such that delayed or misdiagnosis did not result in significant additional injury and would not have changed the prognosis. Jurors often find the “so what” defense compelling enough to excuse negligence.
4. When the defense medical experts include the follow-up care physicians. Their credibility usually exceeds the credibility of the plaintiff’s experts.
5. Damages resulting from the injury are too small to justify the time and expense of litigating the claim.