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Why you may not be able to find an attorney willing to take your medical malpractice case

I get many calls from people seeking compensation against a doctor or other health care provider for medical malpractice or negligence.  Common scenarios are failure to diagnose an illness, mistakes made during surgery, or failure to properly treat an illness.

Some callers are frustrated because they cannot find an attorney willing to take their case.  Just because an attorney will not take your case does not necessarily mean that you were not wronged or harmed.  It could mean that the damages you suffered are not severe enough to make the case economically viable.

Under Ohio law (and many other states), there is a cap on non-economic damages for medical malpractice arising out of acts or omissions of a medical provider. Non-economic damages are more commonly referred to as damages for “pain and suffering.”  The basic cap is the larger of $250,000 or three times economic damages, subject to a maximum of $350,000 per plaintiff and a maximum of $500,000 per occurrence. These maximum amounts increase to $500,000 per plaintiff and $1 million per occurrence if the plaintiff has suffered permanent and substantial physical deformity, loss of use of a limb, loss of a bodily organ system, or permanent physical injury that prevents self-care. Ohio Rev. Code Ann. § 2323.43. This law was enacted in order to protect medical professionals from exorbitant jury awards.

What this means is that a plaintiff is seriously limited in the amount of compensation he or she can recover against a medical provider unless there has been permanent and substantial physical deformity (i.e. severed limb) or death.  Knowing that plaintiffs must overcome this hurdle, hospitals and doctors are more likely to take cases all the way to trial rather than settle them out of court.  These providers and their attorneys know that the cost of taking a case all the way through trial will often not justify the eventual award.  A plaintiff and his or her attorneys run the risk of getting no recovery whatsoever after litigation costs and medical bills are paid off.  In other words, the ends do not justify the means.  Clients will end up with very little money in their pockets, and will be disappointed.

The result is unfortunate for people who have been harmed by doctors or health care providers, but have either recovered or not suffered what the courts consider “permanent and substantial physical deformity.”  Often, clients will ask “so, the doctor can just get away with this?”  The answer is yes and no.  Doctors and health care providers can always be reported to the various licensing boards that oversee their activities.  There may be an investigation and subsequent discipline or loss of license.  However, in answer to the question of whether the doctor/medical provider can avoid paying compensation to an injured plaintiff based upon the laws that support the medical profession, the answer as of now is yes.


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