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Trivial Injuries or Damages
A malpractice lawsuit cannot be brought for the limits of most sm
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all claims courts. The legal paperwork alone costs more than that. But malpractice lawsuits can be brought and settled successfully for as little as $5,000, if handled by a competent lawyer. They are what is known as “nuisance suits” and are usually not worth taking to trial.
It can cost the doctor’s malpractice insurance company $5,000 just to set up the paperwork to defend even the most trifling case and another $10,000 to $20,000 in legal fees and costs if it goes to trial. In addition, malpractice insurance companies always worry about the possibility that a sympathetic jury might give an outrageous award, like the New York jury that gave a woman $200,000 for a cracked bone in her foot.
However, since the chances of winning enough to cover your expenses of going to trial are slim, they do not justify you spending much money or your lawyer doing much work either, and you may even have difficulty finding a lawyer who is willing to accept your case. The lawyers on both sides like to settle small cases for something less than the cost of a trial. They are usually good for a small settlement in the $10,000 to $15,000 range. But, if you become greedy and insist on going for a lot of money, you will probably lose everything.
You should always take your lawyer’s advice regarding the value of your case and not be misled by news stories of enormous awards in malpractice cases. The reason for this is that the occasional big verdict in a malpractice case always receives a lot of publicity. But, you rarely hear about all the plaintiffs who did not win. Being greedy can be a fatal mistake in a malpractice case.
The three important points to remember about trivial or nuisance value claims are:
1. There must be a clear case of malpractice, so you have a good chance of winning something if you go to trial, especially if your injuries were not serious or your financial losses were small.
2. Your injuries were not severe or only temporary. Perhaps the doctor set a fracture wrong, causing some pain and suffering for a few days or weeks before it was corrected, but the final result was good.
3. Your financial losses would not have been over $15,000, even if your medical bills had not been paid by insurance. A jury is not likely to give you much more than you spent.
You have been treated badly. The doctors and nurses have been rude and insensitive. Is that good medical care? No, but it will not win your malpractice case. You have to show actual malpractice caused an injury. You must show there was a departure from good and accepted practice, and it caused you substantial suffering or damages. Rude and insensitive treatment does not equal malpractice.
Maybe you think you will receive a huge verdict in excess of the doctor’s insurance and ruin him financially. Not so. The courts are not going to take away a doctor’s lifetime savings just because he made a mistake. That does not make him a criminal. Even if the jury gets carried away, the judge will probably reduce the amount of the award by what lawyers call Remittitur. Awards in excess of a doctor’s insurance policy are rare and only given in cases of outrageous and offensive conduct by the doctor. So, do not sue a doctor to get even or ruin him financially. It cannot be done. All you can expect is financial compensation for your suffering and financial loss.
Clean Up the Medical Profession
You do not care about the money, but you want to get the doctor out of the medical profession so other people will not have to suffer what you went through. Is that how you feel? You may even have read about how doctors and patients should help in getting bad doctors out of the profession. There is only one problem. It will not work. Even if you win your case, it is not going to affect the doctor’s license to practice and medical societies have little control over doctors.
The Board of Medical Examiners in each state controls medical licenses, and you can file a complaint with the board. But, it usually will not do you any good. Their job is to discipline doctors, not to help you. Cleaning up the medical profession is the job of licensing authorities and the medical establishment; it cannot be accomplished through malpractice suits.
Counter Sue the Doctor for His Bill
The fact that a doctor has overcharged you is no reason to initiate a malpractice lawsuit. The cost of litigation can be many times the doctor’s bill, and even if you win, you are likely to end up with just the amount of the bill being forgiven and not have enough left over to pay your lawyer. Disputes over doctors’ fees are best handled in small claims court or by your lawyer, just like any commercial dispute.
However, if a doctor sues you for his bill and you do not want to pay it, because his services were not satisfactory, you can counter sue in what is called an Affirmative Defense. In some states, you can only counter sue for the amount claimed against you; other states do not limit the amount you can ask for. Either way, it can be an effective means of getting the doctor to reduce or withdraw his bill. Insurance companies do not like doctors who get themselves sued by squeezing patients for money.