If you have been injured by medical malpractice, you know that you may be entitled to a financial recovery from your doctor or hospital. What you may not have thought about is how the amount of that recovery is determined.
How do you put a price on an injury? If a missed diagnosis shortens a patient’s life, what is the value of the stolen time? If a patient is paralyzed by negligence during back surgery, what is the worth of the walks he can no longer take with his wife or the games of catch he’ll never play with his son? The reality is that there’s not enough money in the world to truly compensate victims of medical malpractice for what they’ve lost. There is no way to reclaim lost time, and often no way to restore lost physical capacity.
Still, people who have been injured by a medical provider’s negligence deserve to be made whole as far as that is possible. The best way to do that is through financial compensation for injuries caused by medical malpractice. Because most medical malpractice cases settle, it is helpful for injured patients to understand the settlement process.
Less than 10% of medical malpractice claims that are filed go to trial before a jury. That means over 90% of claims are dropped, dismissed, or settled. A study in Clinical Orthopaedics and Related Research found that of the cases that do go before a jury:
It’s no secret that medical malpractice cases are highly technical and often difficult for victims to win. Strong evidence and testimony of credible expert witnesses can help, as does having a skilled attorney, but there are few “slam dunk” cases. In addition, cases often go on for a year or more, and sometimes for two or three years. Injured patients and their families may not be able to wait that long for relief, especially when it is not guaranteed.
Good medical malpractice attorneys diligently prepare every case as if it will go to trial, but we must also be prepared to accept a settlement if doing so is in our client’s best interests. Here is how attorneys in a medical malpractice case approach the settlement process.
The first step in determining the settlement value of a medical malpractice case is determining whether medical malpractice took place at all. Medical malpractice requires two things: that the doctor or facility did not uphold the “standard of care,” and that the doctor’s failure to uphold the standard of care caused the patient’s injury.
The “standard of care” is how a reasonable physician who is similarly situated would have treated the patient. To use an extreme example, if a patient comes into an emergency department short of breath and complaining of chest pain, it would be a clear violation of the standard of care to give him two aspirin without any further tests or intervention and to discharge him. It is usually fairly straightforward to identify the standard of care in a certain circumstance and to determine whether a doctor violated it.
The second step, establishing causation, is usually much more challenging. Often, patients have underlying conditions that may have caused or contributed to a negative outcome. Sometimes, the doctor’s breach of the standard of care is clear, even egregious, but there is no causal link between that action and the patient’s injury, there is no malpractice case.
If there is both a breach of the standard of care and causation, the medical malpractice attorney needs to assess the value of the case for settlement purposes.
As mentioned above, it is hard to determine the true value of an injury in dollars and cents. But in order to decide whether a settlement offer is fair or not, we have to try. Damages in a medical malpractice case that are intended to compensate a patient for their losses fall into two categories: economic and non-economic damages.
Economic losses include things like:
Non-economic damages attempt to compensate the patient and family for intangible losses, such as the patient’s pain and suffering caused by the injury, or a spouse’s loss of the patient’s companionship.
A medical malpractice attorney should have the experience, and access to the resources, needed to make a good estimate of a patient’s economic damages, including future economic damages. Non-economic damages are more difficult to place a number on. Attorneys take into consideration the severity of the injury, whether there is a permanent loss of function, the age of the patient, and the impact of the injury on the patient’s life.
Physicians must carry medical malpractice insurance. For relatively minor claims, the insurance company may simply make a settlement offer. In cases in which a large settlement payment could affect the physician’s insurance rates, the doctor may need to sign off on the settlement. Few doctors want to go through the stress of a malpractice trial, but if a doctor genuinely believes she is not at fault, she may refuse to authorize a settlement and the case may proceed to trial. Each case is different and many considerations and risk assessments exist for both plaintiffs and defendants whether to settle a case or proceed to trial.
The role of the medical malpractice attorney is to get their client the greatest possible compensation. The attorney must be able to evaluate the strength of the case and the extent of likely damages to determine whether it is worth accepting a settlement offer whether to hold out for a better offer or a verdict at trial. That is why it is important to work with an experienced medical malpractice attorney who understands these cases.
If you have a question about filing or settling a medical malpractice claim, we invite you to contact The Fraser Law Firm P.C. to schedule a consultation.
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