Contrary to what many believe, medical malpractice attorneys DO NOT take every case that walks in the door.

Contrary to what civil justice critics say, medical malpractice lawyers DO NOT bring frivolous cases.

There are many people who believe that New York lawyers take any case, regardless of merit. That is 100% untrue.

There are many reasons I say that.

Let's start with the most basic of reasons.

(1) In order to get a medical malpractice case into court, we must confirm and validate that you have a meritorious case. Without this confirmation by a qualified medical expert, we cannot even get into the court house door.

This requirement is an important filter.

Let me explain why...

When I bring a potential new client into the office, my goal is to do a detailed and thorough investigation.

My goal is to evaluate whether there was

  1. Wrongdoing by a doctor or hospital staff,
  2. Whether the wrongdoing was a cause of your injury and
  3. Whether your injury was signficant and/or permanent.

If my initial evaluation indicates that your matter is missing any one of those three necessary factors, I cannot proceed forward. In fact, my medical expert must confirm EACH OF THOSE THREE factors in order to validate that you have a good case.

If my medical expert cannot confirm each one of those legally required items, then I will have no choice but to reject your case and let you know I cannot help you.

Yes, that means I will have spent money, time and resources investigating your case.

Yes, that means I will have spent money, time and resources to hire a medical expert to fully evaluate your case.

If there's no valid case, that means I have limited my investment and now must cut my losses.

I know of no experienced medical malpractice attorney in New York who would willingly proceed forward with a malpractice case after they have received a negative review from a medical expert. Some attorneys will hire a second or third expert to confirm or contradict the first expert's opinion.

If there is no medical expert who can support your case, then by law, an attorney in NY is PROHIBITED from starting your lawsuit.

This filtering process works well.

(2) The second key reason why an attorney will not take every medical malpractice case is a financial one.

Medical malpractice lawsuits take tremendous amounts of time, energy, resources and represent a significant investment of capital for attorneys who handle these cases.

These types of lawsuits typically take two to three years to resolve. 

I want to give you a true idea of what goes on behind the scenes in an attorney's office as well as an experienced attorney's mindset when it comes to deciding whether to take on a particular case.

Remember that an attorney only gets paid if he gets his client a positive result. If he is unable to settle the case or win money for the client at trial, the attorney gets NOTHING. 

  • Nothing for all the years spent investigating the case.
  • Nothing for the years investing in the case.
  • Nothing for the time spent prosecuting the case.
  • Nothing for all the money he spent on discovery and appearing on conferences.
  • Nothing for all of his effort. Zero.

In medical malpractice cases, the amount an attorney spends to prosecute a lawsuit can be very substantial depending on the type of case and how many experts are required. It will also depend on whether the case goes to trial.

These case expenses, legally known as 'disbursements', can range anywhere from the thousands to hundreds of thousands of dollars. There is wide variation for every case. It's not uncommon to spend $20,000, $30,000, $50,000 and more to prosecute these cases.

What does that mean for an attorney who must listen to civil just critics who argue that lawyers bring frivolous cases?

It means that argument is often illogical.

There is no way an attorney will spend $50,000 of his own money to prosecute a case, knowing full well that his case does not have merit. 

There is no way an attorney will spend significant money if the case doesn't have merit. 

Want to know why not?

Because if the case does not have merit, that means that the attorney will likely never see a return on his investment.

No attorney I know would ever take that financial risk.

Here's another startling fact...

The majority of medical malpractice cases here in NY are settled prior to trial.

Critics will usually argue that the reason many of these cases are settled is that the defense simply does not want to take a risk of getting hit with a large verdict at trial. Part of that is true. That is always factored into when the defense makes an educated decision about the likelihood of success should they proceed to trial.

However, the insurance companies who represent doctors and hospitals in New York are extremely business savvy and the attorneys they hire to represent them are among the best in the business.

Of those cases that do not settle and proceed to trial, the majority of those trials are won by doctors and hospitals.

Critics like to point to the win-loss ratio by the doctors and hospitals at trial as showing that those cases lacked merit.

It's important to understand this argument in order to show that it too is illogical.

If a doctor wins his lawsuit at trial, he and his attorney argue that the lawsuit was “frivolous and lacked merit.”

However, in order to bring that lawsuit a qualified medical expert needed to confirm that (1) there was wrongdoing, (2) the wrongdoing caused injury, and (3) that the injury was significant. The defense obviously disagreed with that assessment.

Since the litigants could not reach an agreed upon resolution of the case, a jury was needed to decide who was more likely right than wrong.

Our system of justice permits an injured victim to bring such a lawsuit in order to obtain compensation for all the harms and losses he suffered as a result of someone's carelessness.

The mere fact that a jury has disagreed with an injured victim does not mean that the case was frivolous.

It could mean that the jury did not believe a specific witness.

It could mean that the jury did not have enough evidence.

It could mean that the jury liked the doctor and did not believe the doctor caused harm to the patient.

In almost every case where the doctor or hospital is victorious in defending a lawsuit against them, they use that case to show and argue that the claims made against them were frivolous.

They then question the veracity of the original medical expert who certified that the case had merit. Then they argue that the whole system is flawed in favor of injured patients and lawyers seeking to hit a big payday.

Here is the reality...

In cases that have merit, those cases are often settled quietly without any fanfare or publicity.

You do not hear critics congratulating an injured victim for being successful in bringing a meritorious lawsuit against a doctor or a hospita who caused the permanent  harm.

Instead, it is only those cases that they win that critics use to beat their chests arguing that our civil justice system is flawed.

When you look at the statistics of how many cases settle prior to trial and the percentage of cases that are won by the defense at trial, you get a better picture that the civil justice system actually works.

Those cases that simply do not belong in court or do not have merit will rightfully be discarded by a jury.

Are there some cases that will slip through the cracks and inflame a jury? Of course. There will always be outlier cases and outlier results that are not consistent with most current statistics.

As an attorney who only represents injured victims, I will be the first to tell you that if the case does not have merit, it does not belong in the court system.

How an attorney decides which cases to accept

It might be refreshing to know that out of 100 calls to my office of people seeking to determine whether or not they have a valid medical malpractice case here in New York, I will immediately reject 99 of them on the telephone before ever inviting them into my office.

Of the 1% who are invited into the office, I then need to perform a detailed and thorough investigation to determine whether the case truly has merit.

Of those cases that we invite in to do a thorough investigation, the majority of those cases do not have merit and are not able to be supported by a medical expert.

This filtering process is designed to identify those cases that do have merit.

As an attorney who must be extremely selective when deciding whether to accept a case, it makes absolutely no sense to accept a “frivolous case" that does not have merit.

You should also know that simply because a case has merit and a lawsuit is brought, does not mean that the outcome will be successful in favor of the injured patient. There many uncertainties on both sides that often lead to a negotiated settlement prior to trial.

To learn even more about frivolous cases here in New York, I invite you watch the video below...

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer