Despite popular opinion about the "skyrocketing" increase in malpractice suits and awards, the number of suits has not increased since 1996, and in most cases, plaintiffs receive nothing. There are a variety of reasons why patients do not recover any compensation for injuries suffered while receiving medical care.
1. Patients don't know they are victims of medical malpractice. Up to 98,000 patients are killed each year as a result of preventable medical error. Medical malpractice is the eighth leading cause of death in the United States, yet only 10,000 cases are filed each year. In the vast majority of cases, however, the fact that malpractice occurred is hidden from the patient and the patient's family.
2. No autopsy was ever performed. In a situation where we claim that the malpractice caused death, we must prove that the carelessness of the health care provider directly resulted in the patient's death. In some medical malpractice cases that result in death, in can be difficult to prove that the death occurred because of the malpractice without an autopsy. In many cases, it is clear from the medical records and circumstances involving the death that the malpractice was the cause of death and no autopsy findings are necessary to win the case.
3. Even though the doctor committed malpractice, the disease or illness likely would have resulted in death anyway. Sometimes cancer or other deadly illnesses may go undiagnosed for months or even years. A late diagnosis of cancer does not always mean, however, that the doctor is responsible for the patient's death. An experienced malpractice attorney can help determine whether the cancer or other serious illness should have been detected "in time" to save the patient.
4. A physician's poor bedside manner does not constitute negligence. In the vast majority of cases, even egregiously poor bedside manner cannot be considered in determining whether a physician committed malpractice in providing treatment. We must prove, from a scientific and legal standpoint that it was carelessness, not poor bedside manner that caused the injury.
5. The patient suffered no significant damages. While we understand that every case is an important case to the patient, the legal system is not set up to handle "small" medical malpractice cases. A hospital may incorrectly give a patient the wrong medication and this may make the patient violently ill for several days. If you have a good recovery, however, you probably do not have a case to pursue. This is because the costs of pursuing the case will be greater than the expected recovery.
6. The injury suffered was not necessarily caused by the physician's or hospital?s mismanagement. As discussed earlier, it is often very difficult to prove that medical mismanagement was the reason the patient suffered the injury that he or she did. The insurance companies have many standard defenses including, for example, that (1) the injury was an unpreventable result of the initial condition/injury (e.g. "If the tumor had been diagnosed six months earlier, it would not have made a difference."); (2) the injury was due to the patient?s noncompliance with medical advice (e.g. "I told him to return to the office if his symptoms did not clear up, but he didn?t listen."); (3) the risk of the patient's particular injury was an acceptable one (e.g. "He got infected in surgery but 2% of all patients undergoing that surgery get an infection."); (4) some other party was responsible for causing the injury, or (5) the injury was caused by a previous illness or disease. Medical malpractice plaintiffs must show a very clear connection between the defendant's misconduct and the claimed injury.
7. The plaintiff has not retained an experienced attorney. Medical malpractice litigation is a world unto its own. It has its own special rules and laws. There are very few lawyers in Michigan who specialize in medical malpractice claims. We believe that it is imperative that you be represented by an experienced medical malpractice attorney or an attorney who is "teaming up with" or co-counsel with an experienced malpractice attorney.
8. The statute of limitations has expired. Each state has its own statute of limitations for filing a medical malpractice suit. These are strict time limits! If the statute of limitations has expired, you cannot file a case. The Michigan Statute of Limitations is two years. The important question is "Two years from when?" Typically, it is two years from the date of the malpractice, but there are exceptions to this rule.
These exceptions include cases involving wrongful death, cases for children, cases where the malpractice was not discovered until after the two year period, Michigan also has something called the "continuing treatment rule," so your actual time to sue may be longer than two years from the specific date of the negligence.
9. Jurors have been biased by the insurance industry. The insurance industry has spent millions funding "research" to suggest that there is a widespread problem with medical malpractice law suits. These studies falsely "prove" that excessive verdicts are causing malpractice insurers to raise their premiums, forcing physicians out of the medical profession. Jurors who hear these messages often award lower verdicts than they would have a decade ago.
10. The Plaintiff is Unable to Hire Good, Qualified Experts. You cannot win a medical malpractice case without one or more very qualified medical experts. They can be hard to find. It is becoming increasingly difficult to find doctors who are willing to stand up for a victim of malpractice. Insurance companies have a regular stable of these doctors who are willing to take any position, no matter how ridiculous, to defeat a patient's legitimate claims.
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