Case Selection: Utilizing Experts in Medical Malpractice Cases by Blair Townsend, OTLA Guardian According to some studies, medical errors are the third leading cause of death in the United States, claiming the lives of 251,000 Americans each year, i.e., 688 deaths every day. This figure does not encompass those patients who survived, often with permanent and debilitating conditions. And yet, despite what seems like a common occurrence, a relatively small number of OTLA members practice in this area. Why? Medical malpractice cases are complex, difficult, risky and expensive. Of OTLA’s diverse field of practice areas, medical malpractice cases are one of the likeliest types of cases to go to trial. A chilling 2009 study suggested even in trials with strong evidence of medical malpractice, the plaintiff loses 50% of the time.1 If you have or are considering a medical malpractice case, you already understand the importance of experts. By their very nature, these cases require an astonishing amount of medical education and understanding. Ascertaining whether specific care (or lack thereof) was an unintended act, an error of execution, an error of planning or a deviation from the standard of care causing harm to your client is not straightforward (even when it seems to be). You need an expert, not just for trial but for determining whether you have a case in the first place. While some practice areas do not necessarily require an expert at the outset, I ardently believe it is dangerous to even file a complaint in a medical malpractice case without an expert already on board. If you read no further, take this as the primary objective of this article: in medical malpractice cases, hire an expert for case selection and engage experts in every phase of litigation. Protect Your Practice — Utilize Experts in Case Selection. Still interested? Great! The right case can change someone’s (or their family’s) life and spur changes in the applicable standard of care, practices or policies of our medical industrial complex … I mean, institutions. However, these cases are often expensive. Another study suggested the average cost to try a medical malpractice case in the United States can range from $20,000 to $50,000 with complex cases reaching an average of $50,000 to $100,000 or more. At a minimum, I would budget for $30,000 in costs for a straightforward case that goes to trial (but even that seems low to me). I have certainly heard of and been involved in cases in which costs far exceeded $100,000. Given that we often cover the costs of our cases, one case lost could potentially bankrupt your firm or, at least, send your finances into a tailspin for a time. Moreover, your client is unlikely to have the financial ability to cover the costs at the front-end or back-end of the case. In essence, the financial risk is too high to drag your practice or your client through litigation on a hunch. Functionally, case selection is crucial to the financial integrity of your firm. Some highly skilled OTLA firms, particularly those that exclusively handle medical malpractice, have internal infrastructure in place for case selection. Some of these attorneys have their own medical background and experience, have medical professionals on staff or retainer to evaluate cases or have practiced on both sides of the “v” and understand the intricacies of hospital administration, insurance coverage and pushing these cases through trial. Those firms may have their own case selection perspective — and I would hang on every word — but that is not me. I do not exclusively practice in medical malpractice and would never venture to know more about these cases than those firms. At any given time, my firm is following three to four potential cases but will only take one, maybe two, maybe none each year. From my perspective, some of my other, more straightforward cases allow me to spread the financial risks of a medical malpractice case and still practice in an area that is stimulating, meaningful and rewarding to me. BLAIR TOWNSEND is the owner of The Townsend Law Firm. A Guardian at the Club level, her practice specializes in personal injury, malpractice , wrongful death, business formation & litigation, unsafe products and residential care home abuse. Her firm is located at 50 SW Pine St., Ste. 400, Portland, OR 97204. Townsend can be reached at [email protected] or 503-715-1896. See Case Selection p. 52 51 Trial Lawyer | Winter 2025
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