WHY WON’T A LAWYER TAKE YOUR MALPRACTICE CASE

I know some families are shocked that an attorney won’t take their medical malpractice case.

Despite political grumblings of frivolous lawsuits, many attorneys reject Medical Malpractice cases for various reasons. First and foremost, just because a physician made a mistake, doesn’t mean you have a lawsuit.

Our office rejects most medical malpractice calls we get, for one of the following reasons. Stated simply, we take cases we hope we can win and won’t take a case if:

1. Statute of Limitations has expired.
Under Virginia law (and every other state) you only have a certain amount of time to file a lawsuit after the incident occurs. In Medical Malpractice cases in Virginia, you have two years. Case against the Veterans Administration have different rules. Because we must look for expert support, we generally need 3-5 months before a Statute of Limitations expires to investigate a case. This means if you have even a potentially valid claim, some attorneys can’t help you if you are close to the SOL.

MORAL OF THE STORY – call an attorney sooner rather than later.

2. Cost of litigation too high.
Under Virginia law, you must have experts to prove a medical malpractice action (this includes nursing home cases). These experts can charge between $5,000 – $20,000 for their time from review to trial. If there is a case, and someones damages are around $10,000 in medical bills – it does not make good business sense, to pay a doctor $20,000 to testify during your trial, when the jury may only give you $20,000… Now does it. So often, an attorney may not take your malpractice case because it doesn’t make good business sense for your family to undergo 2 years of litigation, if you won’t end up ahead of where you started.

3. No Expert support.
After we review records for a potential case, we have to find experts that support the claim. If an expert says “You don’t have a case because…” Then it is unethical and against Va. Code for us to file the lawsuit. You cannot serve the lawsuit unless you have expert support, so if our expert tells us – no case, we tell the family, no case.

4. No Damages.
What if a physician makes a huge mistake, but thank God, you are ok… That means, Thank God, you don’t have a lawsuit. Under Virginia law you must prove (1) doctor was negligent and (2) his/her negligence caused you physical harm. If a miracle happened and you were not caused harm, then you don’t have a suit. You can’t sue someone just because they made a mistake, their mistake must have caused harm.

So – here you have it. A list of why a Virginia attorney may not want to take your malpractice case. The real reason is they want only to take cases they can win, and don’t want you to go through years of emotional stress of filing a lawsuit, if they don’t think they can win.

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Dan Frith

Dan Frith has over 25 years of experience representing individuals and families in cases of medical malpractice throughout Virginia. He has been named "Best Medical Malpractice Attorney" by Roanoker Magazine and is a member of the Million Dollar Advocates Forum. To speak with Dan, contact him by email at dfrith@frithlawfirm.com.