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New Med Mal Survey: Reality of Plaintiff Success

If you ask someone randomly about how frequently a plaintiff wins after filing a medical malpractice lawsuit, chances are they will vastly over-guess the success rate. That is because there is widespread confusion about the “ease” with which those who are harmed by others are able to recover for their losses. If the claims of insurance companies and big medical interests are to be believed, then patients constantly file claims and almost always rake in verdicts and settlements in large amounts. Obviously this assumption is at the root of legislative effort to make it even harder for plaintiffs to recover.

The reality is far different than the incorrect assumptions, however. The fact is that it is much easier to get a case thrown out (even meritorious claims) or win a verdict than it is to go all the way to trial, win, and actually collect. The legal system understandably provides various avenues for defendants to beat a claim. A motion to dismiss can be sought as soon as a complaint is filed with the court, seeking to get rid of the suit on various grounds without even responding to the claims. Later, after the “discovery” phase of the case, the defendant can again seek to end the matter, often with a “summary judgment” claim that argues that there is not enough evidence for a jury to possibly side with the plaintiff. It is only after surviving those stages that a plaintiff is even able to take their story to the jury. Once there, the defendant still has favorable burden of proof standards which mean that if each element of the claim is not shown by a preponderance of the evidence, the defendant wins. In other words the “tie” goes to the defendant.

Taken together, all of this means that the plaintiff has a high burden and long slog to actually receive a favorable judgment in these cases. That is not to say the traditional legal process should be changed–it is important to have adequate safeguards in place in the name of justice. But this is to say that there is absolutely no need to put even more roadblocks in the way of plaintiff’s recovery following harm caused by negligence.

New Survey
The difficulties faced by plaintiffs is evidence by a new survey of outcomes in medical malpractice cases involving bariatrics. The research effort was conducted via email surverys and supported by medical professionals in the field. As summarized in an article at General Surgery News, the survey found that nearly 70% of claims filed against doctors in the field will not result in any recovery for the plaintiff. A combination of dropped cases, dismissed claims, and judgements for the defendant mean that most medical professionals hit with these charges will not actually have to compensate their former patients. The inherent challenges faced by plaintiffs in the legal system are a cause of this situation.

Of course, the spin from the medical community when news like this emerges is that the low recovery rate is a sign that doctors are not actually negligent. But it is critical to look at the information with clear eyes and an understanding of how the civil justice system actually works. It is often very difficult to obtain clear evidence of certain conduct. “He said – She said” claims are of no use in a courtroom. And so even when negligence did occur, if the phsyical evidence is not there to prove it, then the medical professional gets off.

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