How to Decide Whether to Take a Medical Malpractice Case
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See how AI medical-record review links every fact to the exact Bates page that proves it — click any citation and jump straight to the record.
See the 60-second demo →For a plaintiff medical-malpractice firm, the case you decline is as consequential as the case you win. Because the work is contingent and the costs are advanced by the firm (ABA Model Rules 1.5 and 1.8(e)), every intake is a capital-allocation decision made under uncertainty — and the biggest losses come not from losing trials but from funding the wrong cases.
Why Selection Beats Skill
The litigation system is, in the aggregate, a merit filter. In the landmark closed-claims study by Studdert and colleagues (NEJM, 2006), roughly 37% of malpractice claims involved no identifiable error, and the large majority of those no-error claims closed without payment; among claims that did involve error, about 73% were paid. The practical lesson for intake is blunt: the presence of a genuine, provable breach is what predicts recovery — not the severity of the outcome, and not how hard you litigate. Picking cases that have a real breach is the single highest-leverage thing a firm does.
The Four Gates
A viable med-mal case has to clear four independent gates. A weakness at any one of them can sink the case no matter how strong the others are.
1. Breach of the standard of care
Was there a deviation from what a reasonable provider would have done with the information available at the time — not in hindsight? A bad outcome alone is not a breach. The strongest cases have a breach that was visible prospectively: the indicated test not ordered, the abnormal result not acted on, the dangerous diagnosis never considered.
2. Causation
Did the breach actually cause the harm? Causation is where many emotionally compelling cases die — a real error that did not change the outcome is not a recoverable case. Diagnostic error is the most common and most dangerous category; research by Newman-Toker and colleagues (BMJ Quality & Safety, 2023–2024) found a small set of conditions — the vascular events, infections, and cancers often called the "Big Three" — account for the majority of serious misdiagnosis-related harm. Those are the fact patterns where causation tends to be cleanest.
3. Damages
Are the damages large enough to justify the six-figure cost of proving the case? A clear breach with modest damages is often economically unviable in a contingency model.
4. Defensibility
What will the defense argue, and how strong is it? Comparative fault, pre-existing condition, alternative causation, a documented reasonable differential — the time to find the case's weaknesses is at intake, not at deposition.
Score an intake against all four gates in minutes
Our free Case Merit Score weighs the standard-of-care breach and the causation link — the signals that actually predict how a claim resolves — and returns a merit and defensibility read, with every point traced to the record and no invented citations.
Run a Free Case Merit Score →Build a Repeatable Screen, Not a Gut Call
The firms that thrive in contingency med-mal are not the ones that try harder on every file — they are the ones with a disciplined, repeatable screen that says no quickly and yes confidently. A consistent intake rubric protects the firm's capital, frees time for the cases that deserve it, and turns case selection from an anxious gut call into a process.
General information for attorneys, not legal advice, and no substitute for your independent professional judgment. Verify all statistics and authorities against current sources before relying on them.
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