Recently, there was a federally-funded study that said only about 10 percent of people who actually had a valid medical malpractice claim ever talked to a lawyer or otherwise pursued it. That means that the vast majority who have a valid claim are either not aware of it, or are aware and, for whatever reason, choose not to pursue it.
No one, in my mind, has come up with a definitive study about why this is. But in my long experience talking with medical malpractice victims and their families, I think most of the reasons fall into one of three broad areas.
First is uncertainty. Medicine is, by its very nature, an uncertain science, and there are never any guarantees. In fact, even among those who come to our firm suspecting some sort of medical negligence in their case, 80-90 percent turn out to be the result of known complications or otherwise do not involve malpractice.
But 80 percent isn’t 100 percent. So in a significant number of cases, the concerns of patients or their families are justified and born out. And in these cases, a medical malpractice claim is not only justified, it’s the responsible thing for a family to do.
Good medical malpractice attorneys (like those of us here at Schochor, Federico and Staton) have no problem reviewing your case and telling you honestly whether, in our professional judgement, your case is worth pursuing. At our firm, this is a free service. Use us as a resource; that’s what we’re here for. Questions or uncertainty should never be a reason not to act in your family’s best interest.
What’s more, medical professionals—even those who know something went wrong in a particular case—have a big incentive to obfuscate and make unusual incidents seem like the normal course of treatment when talking to families. It’s no wonder that most patients and their families have nothing but questions or gut feelings to go on.
Nothing to Fear
The third major reason most people with valid medical malpractice claims choose not to pursue them is fear. Fear of the unknown, fear that they will need to testify in open court, fear that the process will be emotionally draining and, ultimately, not worth the personal and family toll.
Some of this fear is a direct result of what we watch on TV: the big dramatic trial where witnesses are badgered by rude and uncaring attorneys. The truth is, only a small percentage—less than 10 percent—of valid medical malpractice claims ever go to trial. The overwhelming majority are settled before trial in negotiations between lawyers. Often, other than a few office visits with your own attorney and perhaps a deposition (where the opposing lawyer interviews the party in the presence of a court reporter), there is no need for victims to be directly involved in the litigation process. So there is no real need to fear testifying in open court. It is a rarity, and not as bad as you imagine if it is required.
That’s not to say that pursuing a medical malpractice claim can’t be an emotionally draining effort. It can be. It can also be a long process, full of ups and downs. But a good medical malpractice attorney will carry much of this burden with you, helping to advance the case and your interests in ways that minimize the need for your direct involvement, only engaging you when absolutely necessary.
It also helps to team with an attorney you feel comfortable with on a personal level, since you may work together over a long period of time. It’s something we encourage here, and a big reason why so many of our clients become like family.
The bottom line is this: if you feel that you or a loved one may have been the victim of medical malpractice, you need to act. Don’t be one of the 90 percent who never pursue a valid claim, leaving resources on the table that could help your family heal from the impact of medical negligence. We’re here to help.