Survey results and other data showing how difficult it can be to win a medical malpractice settlement or award, and how to improve your chances of success.
If you’ve been hurt because a doctor or other health care provider made a mistake when diagnosing or treating you, you might wonder whether it’s worth suing for medical malpractice. How hard is it to get compensation for your additional medical bills, pain and suffering, and other losses? What factors increase the chances of winning your case?
To get some answers to those and other questions, we surveyed readers across the U.S. who recently had medical malpractice claims. We also reviewed malpractice claims data compiled by insurers and others. Here’s what we learned.
Some Doctors Are Accused of Malpractice More Than Others
It’s a popular belief among health care providers that malpractice claims are more or less random events that can’t be predicted or avoided. But data published by the Journal of the American Medical Association in 2023 don’t support that belief.
A doctor who had one prior paid malpractice claim was nearly four times as likely to have another paid claim within the next five years as a doctor with no prior paid malpractice claims. This positive correlation held true for all medical specialties, though the likelihood of future claims was slightly higher for specialists in high-risk medical fields (like obstetrics, for example).
The likelihood of future claims goes up based on the number of past claims:
|
Number of Prior Claims |
Likelihood of Another Claim (w/in 5 Years) |
|
None |
3.3% |
|
1 |
12.4% |
|
2 |
22.4% |
|
3 |
37% |
What does this positive correlation mean? That some doctors are the subject of more medical malpractice claims than others, and not just because luck or fate had it that way. Perhaps the most logical conclusion is some doctors make more mistakes—at least more significant mistakes—than others.
While claim frequency doesn’t necessarily equal claim success, the adage “where there’s smoke, there’s fire” seems apt. That is, the greater the number of claims a doctor faces, the greater the likelihood that one or more of those claims will result in a payout.
Obstacles to Getting a Medical Malpractice Settlement or Award
It’s much harder to win a medical malpractice case than other injury-related claims, like personal injury cases stemming from car accidents. In our 2017 survey, only 12% of readers received a "payout," defined as an out-of-court settlement or an award after trial.
Data from other sources show that some malpractice claimants fare better, but payout rates remain low. For example, a review of closed claims from 2015 by the Medical Professional Liability Association (formerly Physician Insurers Association of America) indicated that just 25% of claims ended in a payout. More than two-thirds of claims were dropped, dismissed, or withdrawn.
There are several reasons why so many patients lose or just give up on their medical malpractice claims, including:
- tight time deadlines on filing lawsuits
- procedural hurdles, and
- the high costs of pursuing a malpractice case.
Time Limits for Filing Medical Malpractice Lawsuits
Every state sets its own time limit for filing medical malpractice lawsuits (known as a “statute of limitations”). These deadlines can come up fairly quickly. Depending on the circumstances and the state where you live (or were treated), you might have just a year or two from the date of the malpractice to file your case in court. If you wait too long to sue—which can easily happen when you’re overwhelmed with health issues—the court will have no choice but to dismiss your case.
Procedural Hurdles to Filing a Malpractice Case
In addition, many states have extra procedural hurdles for medical malpractice lawsuits, such as:
- giving advance notice to each medical provider you’re planning to sue
- filing a certificate or affidavit of merit (signed by a qualified medical expert) along with the lawsuit, or
- submitting the claim to a malpractice review panel before you can file a lawsuit.
If you don’t meet these requirements, your case is likely to be dismissed by the court before it ever gets off the ground.
High Costs of Pursuing Medical Malpractice Cases
Medical malpractice cases can be very expensive to pursue. Costs include some big-ticket items like hiring expert witnesses to prove that you have a valid medical malpractice claim. Your lawyer might agree to advance these costs until you receive a payout.
But lawyers usually turn down a case if it looks like the expenses could be nearly as high as the potential payout. That's often the case, especially given state laws that limit medical malpractice compensation. Patients who forge ahead without legal representation may find out—too late—that they’ve thrown good money after bad.
How to Improve Your Chances of Winning a Medical Malpractice Case
Our survey showed that it may be easier to win some types of medical malpractice cases than others.
For instance, more than a quarter (27%) of readers with a medication-related problem received a payout, compared to only 5% of those who believed their doctors made a diagnostic mistake. And readers with claims against doctors and hospitals had a much lower success rate (4% and 6%, respectively) than those suing other types of health care providers (26%).
Claims against practitioners in some high-risk medical specialties got payouts more often. In a report published in October 2020, malpractice insurer Coverys analyzed malpractice claims over a 10-year period, from 2010 to 2019. High-risk medical specialties experienced higher payment rates. Examples include obstetrics (with a payout rate of 32%) and radiology (with a payout rate of 27%).
Of course, you don’t have control over what’s already happened to you. But our survey did point to several steps you can take to increase your chances of success with a medical malpractice claim, including:
- sending a demand letter
- filing a lawsuit, and
- hiring a lawyer.
Sending a Demand Letter
One of the first formal settlement steps that you or your lawyer might take is sending the health care provider (or the provider’s insurance company) a “demand letter,” a letter that describes your legal claims and makes an initial demand for compensation. Sending this letter will give you a better idea of whether the insurer is willing to negotiate and reach a deal before you have to file a lawsuit.
More than 85% of our readers told us they never sent a demand letter. If they didn’t have a lawyer, they might not have known to take this step. For those with legal representation, their attorney may have chosen to negotiate with the insurer over the phone.
Either way, our survey showed that readers who sent a demand letter were much more likely to see a positive outcome. Thirty percent of them received a settlement or award, compared to just 9% for those who didn’t send a letter.
Filing a Medical Malpractice Lawsuit
Only one in five readers took the next step of filing a malpractice lawsuit against their health providers. But those readers were more than four times as likely to receive a settlement or award as those who didn’t sue—30% compared to 7%.
Even though very few medical malpractice claims actually go to trial (8% of our readers had trials, a figure that’s in line with other data), filing a lawsuit starts a process called “discovery”—taking depositions and making other formal requests to obtain evidence. The information gathered during discovery can put you (or your lawyer) in a stronger position to negotiate with the insurance company.
Hiring a Malpractice Lawyer
Having a lawyer to help you through the process of a medical malpractice claim makes a significant difference in the likelihood of a good outcome. Of our readers who hired attorneys, 17% received a settlement or award. In contrast, only 10% of those without legal representation got a payout.
Experienced medical malpractice attorneys know how to navigate the complex legal, medical, and procedural hurdles in these cases. They help gather strong evidence, often know how to find the best expert witnesses, are skilled at negotiating with malpractice insurance companies, and are familiar with deadlines for filing a lawsuit—a hurdle that tripped up many of our readers.
It can be challenging to locate the right attorney to take on your case. Nearly half of the readers in our survey who had legal representation had contacted three or more before they hired one. But it’s clearly worth trying.
