Why Is It So Hard to Bring a Pediatric Malpractice Claim?

Bringing a pediatric malpractice claim against a health care professional is extremely difficult. To prevail, even more. Several studies have agreed that legal action is being initiated only in about one in ten cases of serious medical negligence, and only in one percent of all adverse medical events. Nationwide statistics tell us that only about 30 percent of all medical malpractice cases that proceed to trial result in a verdict in favor of the patient. That means that physicians win about 70 percent of the cases tried in court every year.

In comparison with most injury-related cases, pediatric malpractice claims reach the trial phase a little more often since medical professionals, and their insurers, are more willing to let things play out in court.

Not every bad medical outcome is negligence, but that does not mean that an error was not made. To prevail in a medical malpractice claim you need to prove a few things:

• That there was a medical error
• That the error was a deviation of the standard of care of the medical community in the jurisdiction
• That the particular deviation of the standard of care caused your child's injuries
• That those injuries merit compensation

The first idea to grasp is that a negative outcome does not necessarily amount to medical malpractice. Even when physicians or nurses act with a competent level of expertise and patient care, things can still go bad. Typically, to make a viable pediatric malpractice case, you have got to first demonstrate the level of care and skill that the health care professional who harmed your child should have acted with, based on accepted medical practices in the same community.

Next, you need to demonstrate precisely how your child was harmed by the provision of sub-standard care and how the health care professional deviated from that standard of care in treating your child. All of these parts need to be established by a qualified expert medical witness.

There are a number of common reasons why a medical malpractice attorney would not accept or would not pursue a case:

• The attorney can't find a qualified expert who will provide the testimony that there has been malpractice. Many states require that this kind of certificate of merit be filed along with the initial claim or shortly afterward.
• The attorney has established that the perceived dollar value of the case would come close to or even exceed the cost of bringing the case to trial. It is generally very expensive to obtain an expert testimony, and those costs can skyrocket if the case goes all the way to trial.
• These days, insurance companies are more willing to proceed to trial and less likely to settle. So, a medical malpractice attorney could conclude that it's not economically feasible to bring what may be a good liability case to court.

In conclusion, the vast majority of pediatric medical cases get rejected because the chances of prevailing in court are dim and don’t justify the cost to litigate.