What are the odds of winning a medical malpractice suit?


It is nearly impossible to say what the odds are of winning a particular medical malpractice suit; every case is different, and there are myriad factors to consider. To generalize, though, the odds of a plaintiff winning a medical malpractice jury trial are about 50% under the best of circumstances.

According to the National Institutes of Health (NIH), a twenty year study found that physicians win:

  • 80% to 90% of jury trials in which the plaintiff’s evidence is weak
  • 70% of jury trials in which the plaintiff’s evidence is borderline
  • About half of jury trials with strong evidence of medical malpractice

Suffice it to say, plaintiffs who take their medical malpractice suits to trial are in for a rough fight. This is not necessarily cause for plaintiffs to get discouraged; the NIH study also found that “malpractice outcomes bear a surprisingly good correlation with the quality of care provided to the patient as judged by other physicians,” so it is possible that the high rate of trials won by physicians are primarily the result of weak or altogether unsubstantiated claims.

Even though physicians win more jury trials than they lose, Forbes found that insurance companies coughed up more than $3 billion in medical malpractice payouts in 2012 alone. These facts suggest that the majority of positive plaintiff outcomes in medical malpractice cases are achieved through settlement, mediation, or arbitration.

What Constitutes Medical Malpractice?

There are a lot of specifics, but a solid layman’s explanation is this: A physician is guilty of medical malpractice when they fail to provide services that a reasonable patient would expect. The legal term for it is the “standard of care.”

What Is the Standard of Care in Medical Malpractice Cases?

What is the standard of care in medical malpractice cases? The standard of care is one of those terms whose definition can be vague and easily misunderstood, not dissimilar from legal terms like “probable cause” or “reasonable suspicion.”

The NIH states that medical malpractice falls within the broader category of negligence and identifies four elements that cases must meet:

  • Duty
  • Breach of said duty
  • Harm
  • Causation

Obviously, a physician who agrees to treat a patient has willingly taken on a duty, and the breach of this duty is the standard of care. In many ways, the standard of care can be likened to any custom that professionals in a given industry have widely adopted to minimize or eliminate risk.

An easy example would be surgeons using sterile instruments and “scrubbing up” before an operation. This is a proven and reasonable precaution that any reasonable patient can expect, and should a surgeon fail to do this, they have clearly committed a breach of duty.

If the first two elements are present, courts will look at the last two elements of harm and causation. This is pretty straightforward: Some type of harm must occur, and the breach of duty must be the cause of the harm. It is important here to realize that many surgeries are inherently risky, so a bad medical outcome does not necessarily constitute a breach of duty.

Increasing the Odds of Winning a Medical Malpractice Suit

The best way plaintiffs can increase their odds of winning a medical malpractice suit is to carefully consider their legal representation. Experienced, effective attorneys know how to make the most out of the evidence in a given case, and since the odds of winning a jury trial are less than ideal, a good malpractice attorney will help patients eliminate risk by negotiating a reasonable settlement that is adequate to cover their damages.

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