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The limitations of medical malpractice litigation

Medical malpractice litigation is not in reality what many assume it to be. In particular, one thing that many people do not realize about medical malpractice litigation is that it isn’t necessarily easy to get your case picked up by an attorney. The cost of medical malpractice litigation is high, often so high as to be prohibitive unless there is a promising payout at the end. This being the case, even cases that have strong merits can get left on the sidelines due to lack of incentive.

In addition, as a recent Forbes article discussing medical malpractice payouts indicates, the majority of payouts in these cases are not the result of litigation. In 2013, for instance, 96 percent of medical malpractice payouts took place outside of court. So it isn’t always the case that taking a case all the way is the most effective way for an injured patient to be compensated. 

The flip side of the last observation is that most cases where doctors choose to fight allegations of malpractice end up being decided in their favor. In other words, most plaintiffs in medical malpractice cases lose when they go to trial. This could partially be because cases doctors choose to defend themselves against have weaker merits, but there may be more to it than that.

Medical malpractice litigation can have other limits in cases that are successful at trial, particularly caps on damages. Hawaii, like other states, limits the amount of non-economic damages a plaintiff may be awarded. Attorneys and their clients need to take these and other limitations into account when determining the best way to resolve a medical malpractice case. 

Source: Forbes, “The Puzzle of Medical Malpractice Payouts,” Michael Krauss, March 27, 2014. 

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