Implications of the Cost of Medical Malpractice Litigation on Vulnerable Populations

Pro Publica recently published an article about several studies that show that 9 out of 10 patients seeking a medical malpractice attorney will not find one.  Ernie Ciccotelli is one such patient.  Ernie went into the hospital completely healthy, with the noble intention of donating a kidney to help his brother. Shortly after surgery, he found himself with an infection.  The infection got so bad that Ernie developed gangrene and the hospital had to remove almost a foot and a half of his dead intestines, leaving him very sick, in pain and unable to work or exercise for months.

As a new lawyer, Ernie knew he had a great case against the hospital.  And when he brought his case to a medical malpractice attorney, the attorney agreed that the case was a good one and that Ernie could win.  The attorney then told Ernie that he wouldn’t be able to take the case because it wouldn’t make him enough money.

Over half a dozen lawyers rejected Ernie’s case for the same reason.  In fact, 95% of medical malpractice cases involving real harm are rejected because the economic damages a client could win from the hospital are not high enough to offset the huge expense of the litigation  process.  Handling a malpractice case can cost a law firm anywhere from $20,000.00 (usually closer to $50,000.00) to $300,000.00 or more.  A recent study by Emory University found that more than 50% of attorneys will not take a case – regardless of the likelihood of winning – if the damages are less than $250,000.  In addition, almost no attorney will take a case if the damages are less than $50,000, even if the chance of winning is 95%.

In the field of medical malpractice, economic damages are an important part of determining whether to take a case.  This is because malpractice attorneys typically do not collect any fees until and unless the case is won or settled, in which case the attorney typically receives 1/3 of the damages as a fee.  The payout to an injured person (plaintiff) is mainly determined by the plaintiff’s lost earnings, medical bills and future costs caused by the injury, which are called “economic damages.”


During a time when research shows that hundreds of thousands of people die each year due to preventable hospital errors, and millions are severely injured due to preventable mistakes, it is very troubling that patients and their loved ones almost never are able to get the help of an attorney.  Oftentimes, a lawsuit is the only hope these people have of recovering losses and ensuring a secure future.  Furthermore a lawsuit may be the only chance of exposing the truth about negligence that occurred in a medical institution.

In the eyes of many attorneys, however, the potential payout is often not worth the cost that a firm has to put into a case.  Studies further show that people who don’t earn big paychecks – which means they don’t have a lot of “lost earnings” they can recover in a lawsuit – are the least likely to have an attorney take their case.  Thus, the poor, the elderly, children, and stay-at-home moms often have no access to the legal system.  The elderly are affected the most because their income is often low due to retirement, and they have no dependents, with Medicare covering their medical bills.  In comparison, a 35 year-old who suffered the same type of harm as the elderly person, but who is the main provider for a family with 3 or 4 children, is a much more appealing case.

Ernie, a single person close to 60 with a new law practice and earning potential of around $40,000 per year, is not an attractive case, even though he has severe and permanent injuries that most agree were caused by the hospital’s negligence.

Stephen Daniels, a research professor at the American Bar Foundation, says that attorneys “are the gatekeepers to the law.  You can have all the rights in the world, but if no one will take your case, then those rights mean absolutely nothing.”

In many states, this lack of access to the legal system is made worse by strict caps on damages (“tort reform”) for medical malpractice, according to a recent study.  What’s worse is that this emphasis on damages affects patients all over the nation, regardless of the state caps, according the study.  Indeed, with damages on the minds of most attorneys, this is the most important factor in whether to take a case.  One attorney from Pennsylvania, a state that does not have caps on damages, told the study’s investigator that he rejects cases all the time, even when they’re meritorious, because the cases just aren’t worth enough money.

This sad shut out from the legal system for so many people has to be stopped.  Researchers are recommending that the tort system be reformed by making defendants (hospitals and physicians) who lose a case pay the plaintiff’s legal fees.  Another recommendation is to send medical malpractice claims to an administrative system with neutral judges / arbitrators and medical experts to determine compensation for the injured; this way, an attorney won’t be needed.

Daniels refers to those that are shut out of the legal system as “hidden victims” because nobody knows how many there are since their cases never get heard.  But there appears to be a growing movement in the medical community to be up front with patients who suffered injury.  Unfortunately, this movement is very small.  A handful of medical institutions, such as the University of Michigan Health System, University of Illinois at Chicago Medical Center and Stanford University Medical Center claim that they tell patients when something went wrong and apologize, sometimes giving the patients compensation.


Jesse Reiter & Rebecca Walsh, Medical Malpractice Attorneys for BabiesIn spite of this movement, we still see far too many hospitals refusing to admit any malpractice, even in the face of obvious negligence.  In fact, our firm has seen physicians and hospital try to cover up mistakes in many ways, including by falsifying medical records.  This is why we scrutinize all records and often hire handwriting forensic experts – as well as other experts – to help uncover falsifications of the record and other forms of deceit.

ABC Law Centers is committed to helping injured babies and children, and the firm is passionate about handling even the most complex birth injury cases.  Jesse Reiter has been helping children and their families for over 2 ½ decades and is considered one of the best medical malpractice attorneys in the country by U.S. News.  Birth injury is Jesse’s sole focus.  He has won numerous awards and has helped families all over the United States.

If your child suffered a birth injury and has been diagnosed with a permanent injury, such as cerebral palsy, hypoxic ischemic encephalopathy (HIE), periventricular leukomalacia (PVL), and intellectual and developmental disabilities, contact the nationally recognized attorneys at Reiter & Walsh ABC Law Centers.  We will review your case for free, and if we think your child’s injury was caused by medical negligence, we will fight to obtain the compensation your child deserves for lifelong therapy and treatment and a secure future.  Email or call us today: 888-419-2229.  No money is ever collected until we win your case.


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