Medical malpractice actions are the most difficult actions to pursue for a number of different reasons. First of all, all physicians who settle malpractice claims are required to report to an organization known as the National Practitioners Data Bank. This report must be made regardless of whether settlement is for a dollar or a million dollars. This "black mark" on a physician's record is something physicians dearly want to avoid. In the event a physician receives a black mark on his or her record, it makes it difficult for that physician to be hired by other hospitals and clinics, and physicians are extremely reluctant to consent to any form of settlement. Accordingly, unlike other claims against non-physicians, these cases rarely settle.

It is extremely difficult to find expert witnesses willing to testify in medical malpractice cases, even if the conduct of the physician or hospital is outrageous. There is a code of silence among physicians which is almost universally observed. Accordingly, in order to find an expert witness to testify in your behalf, you generally have to go outside of the state to Texas, Florida, California or some distant state where the physician you choose feels immunized from repercussions. This is an extremely costly proposition and can range anywhere from $3,500 to $25,000. Before you proceed down that path, you must first determine that the case has substantial merit and that your chances of winning are extremely good. Otherwise, it is not worth the risk.

Physicians and hospitals are insured by several companies who are extremely well funded. They hire extremely competent counsel and they are generally willing to pay hundreds of thousands of dollars, in order to keep from paying you a penny. By taking this approach, they discourage plaintiff's attorneys from pursuing medical malpractice cases, except where the plaintiff has an exceptionally strong case.

Physicians and hospitals are also protected by the provisions of the Health Care Availability Act. This legislation places artificial damage caps of $300,000 on all non-economic damages, and $1,000,000 on all economic damages. In the case of a wrongful death, these damages are limited to $300,000, unless there is a substantial economic claim. This limit is $250,000 for claims before July 2004, but the cap on disfigurement and physical impairment for these cases is $1,000,000. By instituting these damage caps, the legislature has removed all risk to the physician's individual assets. Physicians are generally covered with $1,000,000 worth of insurance, and if the maximum risk the surgeon is exposed to is $300,000 or even $1,000,000, he stands to lose nothing by going to trial. On the other hand, the plaintiff rarely has the resources of the physician, and stands to lose $20,000-to-$100,000 in litigation costs in a complicated medical malpractice case, if the jury decides in the defendant's favor. For all of these reasons, medical malpractice cases must be viewed with great scrutiny.