Medical Malpractice Claims: How Can I Increase My Chances of Success?

It's not easy to win a medical malpractice settlement or award, but our survey pointed to some steps that can tilt the odds in your favor. Learn what makes for a winning case.

If a doctor or other health provider made a mistake when treating or diagnosing your medical condition, you may be hoping to win a medical malpractice lawsuit. Is there anything you can do to tilt the odds in your favor? We surveyed medical malpractice claimants across the U.S. to find out how their recent cases turned out and what steps they took along the way. Here’s what we learned.

Proving Medical Malpractice

Overall, only 12% of our readers received a payout, in the form of an out-of-court settlement or an award after trial. This result can be very discouraging if you’re experiencing serious consequences from a medical mistake—including ongoing pain or disability, follow-up procedures, and mounting medical bills. Medical malpractice claims are notoriously complicated, difficult to prove, and expensive to pursue. (For more details, see our article on the likelihood of settlements or awards in medical malpractice cases.)

But clearly, some patients do win their cases. And sometimes they win big. Before looking at what makes a case more likely to succeed, it helps to understand that not all medical mistakes amount to malpractice. In order to prove that you have a valid medical malpractice claim, you’ll need to show:

  • what level of care and expertise was appropriate under the circumstances
  • how the health professional fell short of providing care that met that standard in your case, and
  • how that failure (“negligence” in legalese) caused you harm.

(For more details, see our article on how to prove medical malpractice.)

What Makes a Winning Case

Two of the most important factors that make the difference between successful and unsuccessful claims are:

  • Evidence of negligence. According to an analysis of research into medical malpractice by the U.S. National Institutes of Health, the stronger the evidence of negligence, the more likely it is that the patient will win the case.
  • Extent of injury and damages. In theory, the amount of losses (or “damages”) that you experienced as a result of the medical error—including additional medical expenses, lost income, and pain and suffering—should only affect the amount of the payout, not the chances of receiving any settlement or award. But in practice, if you can’t place a high dollar amount on your damages, you’re less likely to be able to find a lawyer and hire the experts to prove your case (more on that below).

What You Can Do to Improve Your Chances of Winning

You can’t do much to change the extent of the doctor’s negligence or your damages. But our survey shows that there are a few steps you can take to increase your chances of success: hiring a lawyer, sending a demand letter, and actually filing a lawsuit.

Sending a Demand Letter

One of the first formal steps that you or your lawyer may take in order to move along your medical malpractice claim is to send the health provider (or the provider’s insurance company) a letter that describes your legal claims and makes an initial demand for compensation. This way, you can see whether the insurer is willing to negotiate and reach a deal before you have to file a lawsuit. More than 85% of our readers told us they never sent a demand letter. If they didn’t have lawyers, they may not have known to take this step. For those with legal representation, their attorneys may have negotiated with the insurers over the phone. (Many states require an injured patient to give a health provider advance notice of plans to file a medical malpractice lawsuit, and that notice often kick-starts the settlement negotiation process.) Either way, our survey showed that readers who sent a demand letter were much more likely to see a positive outcome for their claims: 30% of them received a settlement or award, compared to 9% for those who didn’t send a letter.

Filing a Malpractice Lawsuit

Only one in five readers took the next step of filing a malpractice lawsuit against their health providers. As a result, those readers were more than four times as likely to receive a settlement or award as those who didn’t sue (30% compared to 7%). Filing a lawsuit starts a process of “discovery”—taking depositions, and making other formal requests to obtain evidence. This is also the time when attorneys work closely with expert medical witnesses to review all relevant medical records and develop a strategy that will most effectively prove your claim.

All of this puts you (or your lawyer) in a stronger position to negotiate with the insurance company after you’ve filed your lawsuit. So even though a small proportion of medical malpractice claims actually go to trial (8% of our readers had trials), filing a lawsuit in court improves the chances of a successful outcome.

Hiring a Malpractice Lawyer

Having a lawyer to help you through the process of a medical malpractice claim makes a significant difference in the likelihood of a good outcome. Of our readers who hired attorneys, 17% received a settlement or award. In contrast, only 10% of those without legal representation got a payout. Experienced medical malpractice attorneys know how to navigate the complex legal, medical, and procedural hurdles in these cases. They can help gather the evidence, and sometimes they’ll agree to advance the day-to-day costs of pursuing your case—including hiring expert witnesses, whose fees can really add up. Lawyers are skilled at negotiating with malpractice insurance companies, and they’re familiar with deadlines for filing a lawsuit—a hurdle that tripped up many of our readers.

It may not be easy to find an attorney, but it’s clearly worth trying. (See our article on finding a medical malpractice lawyer.)

About This Report

The data referenced above is from Martindale-Nolo Research's 2017 medical malpractice study, which analyzed survey responses from readers who had medical malpractice claims and had researched hiring a lawyer. The names of any quoted readers have been changed to protect their privacy.

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