While there are obvious similarities, a medical malpractice case is not your ordinary personal injury case. Liability is almost always at issue and usually involves complex medical issues. Even if it can be shown that the defendant breached the applicable standard of care, causation is frequently an even more difficult and complex issue. Rarely is there any such thing as partial liability. You either win 100 per cent or lose 100 per cent.

Even the best and most experienced plaintiff counsel doing medical malpractice work is likely to lose or give up on more cases than he or she wins.

Cases are defended vigorously by experienced and able counsel whose own practice consists primarily or exclusively of defending such cases. Those defending the doctors are retained by an organization called the Canadian Medical Protective Association—a self insurance organization for the medical profession that is well funded, is not scared by the cost of litigation and does not believe in “nuiscance value” settlements. Hospitals in B.C. are insured throught he Ministry of Health, which also retains very able and experienced counsel.

That isn’t to say medical malpractice cases never settle. They do, but only when defence counsel and their clients are convinced the plaintiff has put together a case they will be unlikley to successfully defend. This usually happens only shortly before trial. You will never have an inventory of medical malpractice files where liability is admitted or where early settlement can be anticipated.

Counsel doing medical malpractice cases for plaintiffs have to, as far as possible, be able to match defence counsel in their experience and knowledge of the field. That includes the ability to become familiar with the medical issues and familiarity with potential expert witnesses.

A plaintiffs’ lawyer should be very reluctant to do medical malpractice work at all if he or she isn’t doing it on a regular basis as a substantial part of his or her practice. That doesn’t mean counsel with no experience in medical malpractice who gets a good case in the door has to turn down the case entirely. It does mean that counsel should, for the purpose of that case, seek the ongoing help on the file of someone who does such cases regularly.

But what is a good medical malpractice case and how do your recognize it.?

The first thing to remember is that these cases are more expensive and involve more risk than other personal injury cases. They tend to require more time and higher disbursments with a greater risk of non-recovery. They therefore require higher damages to be economically viable

A $50,000 or $75,000 motor vehicle accident case may be worth taking. A medical malpractice case involving the same damages is not. Most experienced plaintiff’s counsel are reluctant to take a medical malpractice case where the potential damages do not get well into six figures. Even then, cases under $250,000 should be looked at with caution. A contingency fee of, say, $80,000 sounds great until you realize that you may have to spend twice that amount in time, incur $40,000 or so in disbursments and have no better than a 50-50 chance of winning.

When talking to a potential medical malpractice client, the first question the lawyer should ask (after the standard questions to determine when the limitation period expires) is “how are you now?” If the answer is “fine, but I was off work for six months” or “okay, but I could have died,” the facts of litigation life will have to be explained

At this point, the client may well say something like “I don’t care that much about the money, I just want to make sure this doesn’t happen to anyone else.” A worthy goal and certainly one of the values of the tort system, but the client should (and eventually will) care about the money and so should the lawyer. You do not serve the client by dragging him or her through three years of stressful litigation for no useful purpose.

Do not apply any of the information set out in this website without first discussing it with a lawyer.