It Is About The Money: The Futility of Pursuing Medical Malpractice Claims on Principle Alone | Barrett, Fasig & Brooks (850) 583-8762 (866) 617-5265
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It Is About The Money: The Futility of Pursuing Medical Malpractice Claims on Principle Alone

by E. Rose Kasweck

At Barrett, Fasig & Brooks, we get hundreds of phone calls about potential medical malpractice claims. Often, potential clients are more interested in preventing a careless doctor from providing poor treatment to other patients, or getting a doctor’s license revoked, than receiving a settlement check.

Unfortunately, a lawsuit is not likely to produce any of these desired results.

A medical malpractice action is unlikely to affect a doctor’s ability to practice. In order to have that effect, complaints must be made directly to the Board of Medicine, which performs its own investigation.

However, complaints to the Board of Medicine rarely result in any real disciplinary action. The government agencies charged with performing these investigations have not been funded sufficiently to follow through on most complaints in a meaningful way.

If a private attorney involved in a related civil action or a state prosecutor pursuing a criminal charge is able to provide the board with the testimony and evidence it needs, there is a greater chance of a full investigation, but this a rare circumstance. Incidences of malpractice rarely coincide with criminal violations and civil attorneys must make their own case a priority and protect their clients’ strategy and case confidentiality.

Even in the rare instance where the State fully investigates a doctor accused of misconduct, little may come of it. These investigations are completely confidential until fault is found. This means the doctor is able to continue practicing with a “clear” license while an investigation takes place. And lesser punishments are more common than complete license revocation. A fine, reprimand, or brief probationary period may be the only consequences the doctor faces at the end.

If a medical malpractice case goes all the way to trial, yes, it will be public and people will have the opportunity to know what happened. However, the vast majority of cases settle out of court and settlements generally do not have to be reported.

In fact, confidentiality is overwhelmingly a condition of settlement. Meaning, you will never be able to tell anyone that the doctor or hospital admitted fault (which they often won’t) or how much they paid to settle the claim.

And forget an apology. Doctors tend to vigorously defend themselves; they do not like having their treatment decisions questioned. They rarely admit fault. Even if a doctor was inclined to be contrite, their malpractice insurance company will provide them with an army of lawyers advising them against it. The best you can hope to get is a “sorry that this happened to you, but there was nothing we could do” without any actual acceptance of responsibility. It is more of an insult than an apology to a person who knows they were harmed.

We’re not being greedy when we say that we do pursue medical malpractice cases for the money. These cases are tremendously expensive to pursue (think in the hundreds of thousands of dollars) and our firm advances all these costs at no expense to the client until recovery is made. If we aren’t able to recover as much as we spend, we not only aren’t able to provide any tangible benefit to the client, but we actually lose money which diminishes our ability to pursue other cases that would be financially viable.

At Barrett, Fasig & Brooks, we do our best ensure these doctors are financially responsible for their malpractice. Even if their licenses won’t be affected and they won’t admit fault, we will hold them accountable.

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