It is difficult and expensive to proceed to trial in a medical malpractice or product liability action; and the percentage of those actions that are settled is much lower than in other types of civil actions. However, a medical malpractice or product liability action is usually the only means to recover compensation for the damages suffered as a result of medical malpractice or an adverse effect of medication or a defect in a medical product used by a medical practitioner in diagnosing or treating the patient (for example, medical equipment, devices or supplies).

A decision to investigate or commence a medical malpractice or product liability action should only be made after consideration of the following factors:

• limitation period within which the action must be commenced
• probability of recovering compensation for damages, either by settlement or judgment
• possible amount of compensation that could be recovered
• interest that can be awarded on damages
• expenses that the plaintiff will incur to investigate and prosecute the action
• steps required to advance the action
• costs that the defendant could be required to pay to the plaintiff, if the plaintiff obtains a judgment
• costs that could be awarded against the plaintiff, if the action is dismissed
   

Those factors should be considered again after examinations for discovery and after the statements of experts have been served, in deciding whether to proceed to trial.