In the movies, every lawsuit that gets filed ends in a trial—usually one with a thrilling and dramatic conclusion. In real life, things don’t always work that way. In fact, the vast majority of lawsuits settle, including medical malpractice lawsuits. If you file a claim for medical malpractice, at some point you may have to make a decision about whether to accept a settlement.
This blog post won’t give you a definitive answer, for the simple reason that every case is different. Different types of claims have different chances of success at trial, and a lot depends on the amount and quality of the evidence, as well as the testimony of expert witnesses. What we can tell you is this: according to a report by the U.S. Bureau of Justice Statistics, only about 7% of medical malpractice cases are decided by a jury; the rest are either dismissed or settle before trial or after trial is underway. Let’s talk about when it makes sense to settle a case, when it makes sense to go to trial, and how to decide.
Every decision to settle a lawsuit—or not—is the result of a cost-benefit analysis. Am I likely to prevail at trial? If so, am I likely to get a better award of damages? Will any likely increase in damages be worth the extra time, effort, and expense of taking the case to trial?
Accepting a settlement offer has three obvious advantages: you get compensation for your injury, you get it now rather than later (possibly years later), and you avoid the stress of a trial. Whether the deal is a good one depends on your needs, and the advice of your attorney.
Doctors and hospitals don’t make a settlement offer out of the goodness of their hearts. They make the offer because they believe it is the best outcome for them, possibly because they might have to pay much more following a jury verdict in your favor. So your providers (or, more accurately, their medical malpractice insurance carrier) make a settlement offer that they think will save them money, but that they hope will be attractive enough to you that you’ll accept.
Accepting a settlement offer means that you have money that you need right now to pay your mounting medical bills and provide for your family’s needs. That can be a very strong motivator. But don’t underestimate non-economic reasons to settle.
Many people find the legal process grueling, even with an attorney who keeps them informed and supported. There is a certain amount of peace of mind that comes with having your case behind you and being able to focus on the future. What you want to avoid is the nagging “what-ifs”, including “What if I had gone to trial and done better?”
The amount of money being offered to you may seem astronomical—perhaps more than you’ve ever had in your life. Or it may seem insulting—a small price for your doctor to pay for what they did to you. It’s natural (and common) to have an emotional response to a medical malpractice settlement offer. But a decision that could affect your future financial and physical health for years to come should not be based on emotion.
The decision whether to accept a settlement offer always belongs to the person seeking damages (the plaintiff). But that decision should be informed by your attorney’s guidance. A medical malpractice attorney is not only likely to be more objective, but they have experience in these matters, and can better predict whether the offer is a good one after analyzing the following questions:
The truth is that you can’t know whether a settlement offer is a good one unless you have a firm grasp on what your lifetime costs due to the injury are likely to be. A $200,000 settlement might sound good—until you realize that your lifetime medical expenses from the injury are likely to be over $500,000 and your projected lifetime loss of income due to the injury is another $500,000.
There’s also one other critical question your attorney will ask:
Even the very best medical malpractice attorneys don’t have a crystal ball, and you should be very wary of a lawyer who promises you a certain result. Medical malpractice cases are complex, often with challenging causation issues. In other words, no lawyer should promise you that you will win at trial, or get a million-dollar award.
Your medical malpractice attorney should also be candid with you regarding the likelihood of success at trial. Research has shown that medical providers win between 80% and 90% of cases where the plaintiff’s evidence in the case is considered weak; even where the plaintiff’s case is borderline, doctors still win 70% of the time at trial. That doesn’t mean you should never go to trial; you might still have a 20% chance of winning even in a weak case. But it does mean you should be aware of the risk of turning down a settlement.
There’s a lot on the line when you’re filing a medical malpractice claim, and this is no time to work with a general practice attorney, or even a personal injury attorney. These cases are complex, and experience matters. For one thing, an experienced medical malpractice attorney has likely handled more cases like yours and taken more to trial, and they will have a better basis for evaluating the value and strength of your case. That makes them better at advising you whether to accept a settlement, and better at negotiating an offer up to an acceptable level. Having an attorney with experience in medical malpractice also means they are likely to be better at preparing the case as strongly as possible, including having access to respected experts. That means that if you do ultimately end up going to trial, you are more likely to win.
Don’t underestimate the fact that the opposition pays attention to who your attorney is, too. If opposing counsel knows your attorney is not experienced, they are more likely to make a lowball offer, knowing that your attorney would probably prefer to avoid a trial at all costs. The client of a skilled litigator with a strong track record in medical malpractice cases may get a much better offer. To learn more about whether to settle a medical malpractice case or press forward to trial, or to discuss your particular situation with a knowledgeable attorney, contact the Fraser Law Firm to schedule a consultation.
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