If you have been injured by the negligence of your medical provider, you are understandably concerned about what the future holds, including how you will get the care you need, pay your bills, and support yourself and your family. In some cases, the only way to get the financial help you need is to file a claim for medical malpractice.
Depending on the seriousness of your injury, the compensation you are seeking may be needed for your support for many years into the future. How on earth do the lawyers involved—on both sides of a medical malpractice case—arrive at a reasonable settlement amount?
Going to trial can be costly for defendants (the doctors, hospitals, and other medical providers defending against a claim of medical malpractice), and stressful for plaintiffs (persons making a claim). Often, reaching a settlement is the best solution for both sides. Defendants avoid the expense and potential negative publicity of a trial; plaintiffs avoid the stress and uncertainty, and come away with the certainty that they will receive some compensation for their injury.
For each side, of course, there is the possibility that they might have had a better—or worse—outcome had they gone to trial. A settlement amount needs to be such that all parties are willing to give up their right to have a jury decide the outcome. Factors that go into reaching that amount include:
If a plaintiff cannot prove that their injury was caused by the provider’s negligence, they will not be able to win a medical malpractice case at trial. If there is strong evidence of liability, a defendant is more likely to make a settlement offer, and a higher one, because they know that there is a greater chance they might lose at trial. If evidence of liability is weak, a defendant may make a low settlement offer, on the theory that the plaintiff might rather accept it than risk proceeding to trial and losing.
Anticipated damages are at the heart of any settlement offer. They include both economic and non-economic damages. Economic damages include past and future medical expenses due to the injury; lost wages; rehabilitation costs; and anything else for which an injured patient would have to pay as a result of their injury, like housekeeping services or the cost of retrofitting their home for wheelchair accessibility.
Non-economic damages include things like pain and suffering, emotional distress, loss of enjoyment of life, and loss of companionship for the injured patient’s family. Unsurprisingly, non-economic damages are harder to put a value on. In rare cases, the possibility of punitive damages must be considered, if the defendant’s conduct was especially egregious (like a surgeon who performed an amputation while intoxicated and removed the wrong leg).
For plaintiffs, the up-front costs of bringing a medical malpractice action are minimal; their attorney advances the costs in exchange for a percentage of any eventual settlement or verdict. But as mentioned above, trials can be costly for defendants, so there is an incentive to avoid a trial and to resolve the case quickly.
In addition to any potential payment to an injured plaintiff, the cost of a malpractice claim to an insurer includes hourly defense attorney fees. The amount of time needed to prepare one of these complex matters for trial is often in the hundreds of hours, sometimes 600 hours or more. In other words, whether a defendant wins or loses their case, they may pay hundreds of thousands in legal fees.
That doesn’t include the cost of expert witnesses, whose review of the case and trial testimony may be billed at more than $1,000 per hour, depending on their specialty and experience. The fees for expert witnesses are routinely in the tens of thousands of dollars and can easily exceed $100,000, especially in a case with multiple experts. Defendants must take these potential costs into account in medical malpractice settlements.
A provider’s medical malpractice insurance policy limits can also have some influence on how settlements are determined. These limits are often structured as “per claim” and “per year;” for example, a policy might have a limit of $1 million dollars per claim, and $3 million dollars total per year. If damages in a single case are higher than the “per claim” amount, the doctor or other provider would have personal liability.
In many cases, it makes sense to settle within policy limits to ensure that the plaintiff can readily collect what they are entitled to. It may be preferable to walk away with a $1 million dollar check than to win a $1.8 million dollar verdict after a long trial and struggle to collect payment. Every case is different, however, and this is a strategic decision each plaintiff must make in consultation with their attorney based on the facts of their unique case. Offers to settle within policy limits can also put pressure on insurance companies to avoid bad faith claims.
Your attorney’s experience makes a difference in medical malpractice settlements. An attorney who concentrates their practice in medical malpractice cases will be more skilled at estimating future damages and will not encourage their client to accept a settlement that will eventually leave them without the resources they need to live the best life possible.
The quality and reputation of expert witnesses is critical to the strength of a medical malpractice case, which means that they are also important to settlement position. Experienced medical malpractice attorneys have access to trusted, highly-regarded experts whose involvement can better position their clients for a favorable settlement.
There are many factors involved in how settlements are determined in medical malpractice, but your attorney is the one that you have control over, and may be the most important decision you make in your case. To learn more about medical malpractice case settlements or to discuss your case, contact the Fraser Law Firm to schedule a complimentary, confidential consultation.
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