Yes, I think you have a lawsuit but I don't recommend you file it

If someone called you and told you, they could take $10,000 of your money, invest it, and in 2 years, you would get your $10,000 back plus $100 in interest, would you do it?
$100 return on a $10,000 investment seems pretty low. Almost not worth it.

So what if that same person then explained that in addition to the $100 interest they could get you, you would have to pay them a fee of 40% of your original investment, plus costs related to the investment, would you sign up?
Hopefully not, because at the end of this investment cycle you would have much less than what you started with.

Being a plaintiff in a lawsuit is not a picnic.
It is nothing like the TV commercials where happy clients get checks simply for hiring the right law firm.
It is work.
It is emotional.
It is embarrassing, taxing, difficult and time consuming.
It is an investment of your time, money, emotional energy and like any investment, not risk free.
Sometimes families will call us and a doctor or hospital has clearly provided bad care. In fact, the mistake is so obvious we tell families – “you are likely the victim of malpractice.” But then, we say something shocking.

We say “Despite the fact you have been the victim of malpractice, we do not recommend your family file a lawsuit.”

Why would a law firm ever say this to a potential client?

We tell clients all the time that despite their pain, injury and the wrongdoing they have suffered, we fear the costs of filing suit would outweigh any potential recovery.

Meaning scenario 2 above.

Meaning we have enough experience in malpractice lawsuits to know their investment won’t pay off. You will spend 1-2 years in court, to recover a nominal amount and maybe, that amount will all go to Medicare or Medicaid or an ERISA lien. Maybe, all the recovery will go to trial costs or attorneys fees. Maybe you will end up $100 in the end on an investment of $10,000. Would you spend 1-2 years in court just to make a point if at the end you received nothing for your time? Probably not.

So I repeat myself:

Sometimes you have a lawsuit and we don’t recommend you file it.

Just yesterday I gave this advice to someone who called and their predictable response was “SO THE DOCTOR JUST GETS OFF SCOTT FREE?”

Well, I asked the caller. “What is your goal? To inform the doctor of their mistake? Make them pay attention better next time?”

“Yes,” explained the caller. “That is my goal.”

Most malpractice lawsuits cost $20,000 in expert witness fees or more.
Attorneys fees are typically 40%.
Lawsuits typically do not resolve until weeks before trial – which is years into expensive and invasive litigation.

IF you know all the facts about your potential investment as a plaintiff, and it makes sense for you to proceed, you should do it. You should stand up for yourself and ask for justice. It is right, appropriate and my honor to assist you. But if the pursuit of justice brings you little else, it is no longer a worthy goal.

So as I advised a called yesterday, “Sir, I am sorry for your pain. But filing a lawsuit is not likely the answer. Send a good old fashioned letter to the doctor’s boss. See if that doesn’t get their attention.”

Lauren Ellerman

Lauren Ellerman

In 2011, Lauren Ellerman was named "Young Lawyer of the Year" by the Roanoke Bar Association for her work in the community. To speak with Lauren about your personal injury case, contact her at