Medical malpractice cases are very complex.
This series of articles by BC personal injury and medical malpractice lawyer Paul Mitchell, Q.C., will explain the Top 7 things you need to know about medical malpractice cases, including when a medical malpractice case should be commenced, the legal and medical issues involved, and why they are so hard to win.
Paul Mitchell Q.C has successfully concluded BC medical malpractice cases for amounts up to 3.5 million in individual cases.
Find out what is involved in these difficult cases.
#7 When can a medical malpractice case be brought…how serious must the injury be?
Before a lawyer will agree to take on a medical malpractice case, the lawyer must first evaluate the potential damages to decide if the case makes economic sense, to both the client, and the lawyer.
Most clients want these cases done on a percentage fee (a “contingency agreement”). Contingency fees range from 25 to 40%, depending on the potential amount of the claim the stage of the lawsuit when it is settled, and the risk inherent in each case.
The amount of lawyer’s time required in a case like this can be substantial. The lawyer has to weigh his/her investment in time, versus the likely outcome.
It is not uncommon for a lawyer to invest over $200,000 to $300,000 in their time in a complex file, sometimes much more.
If the time likely expended does not justify the outcome from an economic perspective, the lawyer will not take the case on a percentage.
As an example, if the case has likely damages of only $100,000, and the lawyer expects his time on the file to be $150,000,based on his/her normal hourly rate, it makes no sense for the lawyer to take the file on a percentage. They would decline to take the case.
A medical malpractice case should only be commenced if it involves a serious injury. That usually means a permanent injury that will have an long term impact on the plaintiff’s income, or will require significant future care costs. Cases that involve a patient who had considerable pain for a short period of time, but is now fully recovered, do not justify a lawyer to take the case on a percentage, from an economic perspective, as the damages would not be enough. These cases are just not economically viable, for the lawyer, or the client. The lawyer’s expected time invested may exceed the value of the entire claim.
If the malpractice has resulted in a death, compensation is limited to only the economic loss suffered by people who were dependent on the deceased. This is governed by a BC statute called the Family Compensation Act. There is no compensation for grief or solace. It is strictly an economic loss calculation.
Unfortunately, the death of a child or a senior rarely gives rise to damages that would warrant a lawyer taking the case on a percentage, given the low amount of damages that would likely be awarded.
The client can then only proceed if they agree to pay the lawyer’s hourly rate. If the fees will be more than the damage claim, it is simply not economic for the client to proceed.
Paul Mitchell, Q.C.is a BC personal injury lawyer who has extensive experience with severe injury claims, including brain injury claims, spinal injury claims, death claims, ICBC claims, medical malpractice claims, and other catastrophic injury claims. He acts for injured clients all over BC and Alberta, and will not act for ICBC or any other insurance company.
For more information on this article, or for a confidential discussion of your injury claim, contact Paul Mitchell, Q.C. at 250-869-1115 (direct line), or send him a confidential email at [email protected]
