How Hard Is It to Win a Medical Malpractice Claim?

Our survey showed it's very difficult to win a settlement or award for medical malpractice. Learn why—and what can increase your chances of success.

If you’ve suffered harm because a doctor or other health professional made a mistake when treating or diagnosing you, you may be wondering whether it’s worth suing for medical malpractice. What are your chances of getting any compensation for your additional medical bills and other losses? We surveyed readers across the U.S. who recently had medical malpractice claims, to find out how their cases turned out. Here’s what we learned.

Medical Malpractice: A Challenge for Patients

Even though doctors and insurers complain about the prevalence of medical malpractice lawsuits, lawyers for the patients who sue know these cases are much more difficult to win than other injury-related claims, like those arising from car accidents. Our survey results support this observation. Only 12% of our readers received a payout, in the form of an out-of-court settlement or an award after trial. (When you’re looking at this figure, keep in mind that the readers who participated in this survey had come to our websites to find information about medical malpractice claims and to look for a lawyer. It may be that patients with the strongest cases—and better chances of getting a payout—didn’t participate in the survey because they were quickly able to find a lawyer elsewhere.)

Still, the low success rate reported by our readers is in line with past studies showing that only a small percentage of patients get payouts in their medical malpractice claims. According to several studies, between 20% and 25% of patients win an award after a trial. But very few cases get that far. In fact, only 8% of our readers went through a trial. Of the remaining 92%, it’s likely that many simply gave up after being stonewalled by the doctor’s insurance company, or they had their cases thrown out. One analysis of research into medical malpractice by the U.S. National Institutes of Health revealed that 80%-90% of medical malpractice claims were dropped or dismissed without the patient receiving compensation. Other studies have shown that the success rate varied considerably between different states—which could be related to requirements in several states that make it more difficult to pursue medical malpractice claims (more on that below).

Obstacles to Success for Patients

There are several reasons why so many patients lose or just give up on their medical malpractice claims, including:

  • Quick action required. Every state sets its own time limit for filing medical malpractice lawsuits (known as a “statute of limitations”). These deadlines can come up fairly quickly—often in one or two years—and it may not be clear to patients when the “clock” starts ticking. If they wait too long to take action—which can easily happen for those who are overwhelmed with health issues—the court will dismiss their case.
  • Procedural hurdles. As part of reform measures intended to discourage frivolous medical malpractice lawsuits, many states have established extra requirements that patients must meet at the outset. For instance, patients may have to give notice of their intent to file a medical malpractice lawsuit to each medical provider they’re planning to sue, file a certificate or affidavit of merit (signed by a qualified medical expert) along with the lawsuit, or submit the claim to a malpractice review panel as a prerequisite to filing suit.
  • High costs. Medical malpractice cases can be very expensive to pursue. And insurance companies frequently dig in their heels and refuse to settle, driving up costs even further. The day-to-day costs include some high-ticket items like hiring expert witnesses to prove that you have a valid medical malpractice claim. Lawyers may agree to advance costs until the patient receives a payout (see our article on attorneys’ fees in medical malpractice cases). But they’ll usually turn down a case if it looks like the expenses could be nearly as high as the potential payout—which is often the case. Patients who forge ahead without legal representation may find that they simply can’t afford to keep pursuing their claims.

Lawyers Make a Difference in Medical Malpractice Claims

If you’re wondering how you can improve your chances of success with a medical malpractice claim, our survey points to one factor that makes a big difference: Readers who hire lawyers were nearly twice as likely to receive a settlement or award, compared to those who didn’t have attorneys. A medical malpractice lawsuit is a complex undertaking on a number of fronts—legal, medical, and procedural—and an experienced attorney will formulate a legal strategy that can boost the chances of a favorable outcome. (See our article on increasing your chances of success in medical malpractice cases.) It can be challenging to locate the right attorney to take on your case (see our article on finding a medical malpractice lawyer), but it’s usually worth the effort.

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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