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Why there can be negligence but not a lawsuit?

To file (and win) a civil lawsuit for medical or nursing home malpractice,   There are many examples of negligent care that don’t result in what the law considers a recoverable damage.

For instance, you may have an allergy to a medication and this is noted on your chart.  If a doctor prescribes that medication to you, in most every case that would be negligent or said another way, a breach of the standard of care.  However, let’s say, the nurse who was supposed to give the medication noted that you were allergic to it and did not give it to you. Therefore there was no  harm caused to you by the doctor’s negligence.  The law would not allow you to file a civil lawsuit because there were no legally recognized damages.

In some cases you may also have a damage but, from a legal and practical standpoint, it may not be  large enough to warrant filing a civil lawsuit.  An important consideration every lawyer must undertake in evaluating a medical malpractice case is the fact that someone (often a judge or  jury) will be asked to place a value on the damages and make a monetary award.  That award must be high enough to justify the costs of litigation.  Medical malpractice lawsuits are very expensive claims to undertake because you must have one or more medical experts who will testify in support your claim.  These experts often charge very high hourly rates for their services and in most states, this is not an expense you can recover from the defendant in the lawsuit if you win.  There are lots of other costs as well.  If the damages are not enough to outweigh the cost, it is very difficult to pursue a case.  Tort reform and damage caps have made this even more difficult for civil litigants.

The most important thing to keep in mind is to have a lawyer who has experience in litigating medical malpractice cases evaluate your claim  They will have a good approximation of the expenses to pursue your case.  There are always many factors to examine and this may be presented to you in a range, giving you a “best case” and “worse case” of what to expect.

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About the author

Rosen & Spears is a plaintiff law firm which seeks to protect the rights of healthcare consumers and their loved ones through medical malpractice, nursing home neglect, financial abuse of seniors, and other types of claims. For more information, please contact us