What to Do With “Borderline” Medical Malpractice Cases: A Physician’s Perspective

Some medical malpractice case evaluations can solidly distinguish slam dunk cases from completely meritless ones. But, more often than not, most cases do not fall within the two extremes. Oftentimes, an expert’s review of records can result in a “borderline” assessment of a case. A “borderline” assessment indicates the case is neither particularly strong nor a complete “throwaway.” A number of issues could weaken a case—from questionable causation to potentially low damages to missing or incomplete records. Before an attorney decides whether to take on a “borderline” medical malpractice lawsuit, there are some issues to consider.

Consider the Damages Amount During the Medical Malpractice Case Evaluation

For attorneys and plaintiffs alike, whether or not to pursue a case is often a question of monetary damages. Of course, attorneys are more likely to pursue a case if the damages are sufficiently large.

To quantify the value of the harm, attorneys should consult a damages expert that is skilled in estimating such amounts. These amounts can include compensatory damages, lost earnings, pain and suffering, and loss of consortium. Damages are very case-specific. However, there are some general standards regarding the severity of the injuries that experts can apply to determine an estimated amount. For example, a permanent injury will likely be worth more than one that is treatable. It may be tempting to assume a damages amount. Nonetheless, it is always better to consult with an expert skilled in making these estimates. By doing so, you avoid putting time, energy, and financial resources into a case that may not be worth it.

The Strength of Causation

The crux of most medical malpractice cases hinges on whether the defendant physician proximately caused the plaintiff’s injuries. In order to establish a medical malpractice claim, the plaintiff must prove that:

1. The defendant doctor owed them a duty of care
2. The defendant breached that duty and deviated from the acceptable standard of care
3. The breach proximately caused the plaintiff’s injury
4. The plaintiff suffered damages

About 75% of our borderline medical malpractice case evaluations indicate some deviation from the acceptable standard of care. However, whether an attorney can establish proximate causation is not always as clear-cut. It is not always a matter of establishing a relationship between the doctor’s conduct and the injury. Some cases may involve a number of physician defendants, medical procedures, and pre-existing conditions. These factors could have all affected the plaintiff’s ultimate outcome. Attorneys should isolate all variables and separately consider each to effectively assess whether a physician’s negligence directly caused an injury.

It’s important to remember that proving proximate causation doesn’t mean a judge will award a plaintiff full damages at trial. Under the comparative negligence doctrines, a judge proportionally reduces a plaintiff’s damages award to the degree they contributed to their own injuries. Some jurisdictions completely bar plaintiffs from recovery if they are at fault to any degree. Therefore, attorneys should evaluate the plaintiff’s own actions to the extent they can be used against them in determining damages.

Don’t Forget the Medical Records

Although this seems fairly obvious, it’s critical that attorneys obtain all pertinent medical records before an expert conducts any serious medical malpractice case evaluation. Sometimes this is easier said than done, especially for complex matters that have spanned years (and different medical providers). For example, a plaintiff might not automatically disclose their prior health history if it was a long time ago. But the opposition may use a seemingly unrelated pre-existing condition against the plaintiff down the line to challenge causation. Therefore, it is always best to obtain as much of the plaintiff’s medical file as possible. This ensures that attorneys receive the most accurate case assessment and prevents any surprises.

Consider Your Risk Tolerance

If provided with the complete records of a case, qualified experts can more effectively assess any damages and causation issues. These determinations are case-specific. However, experts also make those determinations against the backdrop of previous medical malpractice cases filed in the applicable jurisdiction. Thankfully, previous lawsuits can give us a more accurate picture in assessing the overall value of a current case. Any case law that developed from lawsuits can also help. If cases with similar facts resulted in substantial damages awards, an attorney can have more confidence in retaining the case.

However, it is the attorney’s decision whether or not to take on a case. How risk-adverse a firm is or is not naturally influences that individualized determination. Ultimately, an attorney needs to be comfortable with whatever risk level a case presents prior to accepting it. At Expert Institute, we can provide attorneys with all the tools they need for their medical malpractice case evaluation. Using these tools ensures attorneys are making a decision that works for their practice.