Medical Malpractice Settlement Negotiations

by | Jan 30, 2023 | Medical Malpractice

Medical malpractice lawsuits are among the most complex types of personal injury claims. Just like the road to recovery, they take time, commitment, and plenty of tenacity. If you have suffered an injury or loss caused by the negligence of a health care provider, such as a doctor or hospital, you may be entitled to financial recovery.

While many people assume they’ll have to go to trial to be compensated by those responsible for medical malpractice, it’s much more likely their case will be resolved outside of court. In fact, according to a study conducted by the U.S. Bureau of Justice Statistics, only 7% of medical malpractice lawsuits are decided by a jury, which means approximately 93% of malpractice cases are resolved before a trial.

Finding the Right Attorney

Finding an experienced lawyer who is focused on representing patients that have been injured by a medical provider is a critical component to the success of a medical malpractice case. Medical malpractice is a relatively rare legal specialty that typically involves very serious injuries, complex medical facts, extensive research, multiple expert medical witnesses, significant damages, and tight deadlines.

The best medical malpractice attorneys have a special skill set that includes deep legal expertise and an in-depth working knowledge of medicine, physiology, and anatomy. This includes the capacity to:

  • Work effectively with expert medical, vocational, and damage witnesses
  • Manage a team of lawyers and support staff
  • Litigate all aspects of the case
  • Prepare a case for trial.

They also have the experience to understand the strengths, weaknesses, jury appeal, and relative value of the case so that they can best determine if/when a case should be settled or if/when it should go to trial to be decided by a jury.

When choosing an attorney, look for someone who has this critical experience as well as a successful track record. Someone who understands and will wholeheartedly take on the complex challenges of your medical malpractice case, and who is willing – and able – to take your case to trial and prevail.

What Are the Requirements for Demonstrating a Medical Malpractice Claim?

The first step when reviewing a medical malpractice claim is to determine if medical malpractice occurred. A good attorney will gather and review all the pertinent medical records so that they can determine not only what happened, but what should have happened. In many cases, this initial review can involve thousands of pages of medical records.

The rules of medical malpractice claims can vary by state, but there are some basic requirements to any case. In order to have a successful medical malpractice case, you must demonstrate, often with the help of medical experts, four critical factors:

1. Duty of Care

Under the law, an injured person can’t usually recover compensation from the defendant unless there was a violation of a legal “duty.” Every medical practitioner has a duty to provide their patients with care and treatment that meets certain reasonable standards.  This is often described as the “standard of care” for “reasonably prudent” health care providers acting under similar circumstances.

2. Deviation

Health care providers measure their standards against one another, both practically and legally. Defining the “standard of care” in a specific can sometimes be difficult, and it requires the testimony of another health care provider that practices in the same specialty area that the applicable standard of care in the case was breached or violated.

3. Direct Causation

It is not enough to show that a doctor or hospital violated the applicable standard of care.  In order to win a medical malpractice case you have to prove, again with expert medical testimony, that the failure to meet the standard of care was a direct cause of a significant injury. If there was no injury resulting from the malpractice, or you cannot prove the causal connection between the malpractice and the injuries at issue, then you do not have a viable case of medical malpractice.

4. Damages

Once you have established that a breach of the standard of care occurred, and that the breach was the direct cause of your injuries, then a successful claim requires proof of damages. This damage can be broken in two parts: economic and non-economic damages.

Economic damages, also referred to as “special damages”, are intended to compensate you for monetary losses you suffer because of the malpractice. They may include past and future medical bills, lost income, loss of earning capacity, and items such as the costs of vocational rehabilitation, medical products and supplies, and home health care. Non-economic, or “general damages,” may include pain and suffering, emotional anguish or distress, loss of enjoyment of activities, and the worsening of prior injuries.

How Are Medical Malpractice Cases Resolved?

Medical malpractice cases are successfully resolved by settlement, or by a judgment from a verdict at trial or arbitration. Sometimes medical malpractice settlements occur before a lawsuit is filed after direct negotiations between the claimant and their attorney and the negligent health care provider’s insurance company.

If settlement cannot be reached in this manner, a lawsuit must be filed and the case litigated to give both sides more information about the malpractice, the causal links between the malpractice and the injuries at issue, and the extent of the damages suffered.  At some point in the litigation, the parties will most often opt to try to settle the case before trial by using a form of Alternative Dispute Resolution (ADR).

Alternative Dispute Resolution (ADR)

ADR can be requested or initiated by either side in a medical malpractice case. Arbitration and mediation are the two most common forms of ADR in medical malpractice matters.

Arbitration takes place out of court: the two sides select an impartial third party, known as the arbitrator to “arbitrate” the disputes. The parties agree in advance to comply with the arbitrator’s decision and any award of compensation; they then participate in a hearing or series of hearings during which both sides can present evidence and testimony. Arbitrations are less formal than a jury trial and less costly. The arbitrator’s decision is usually final, and the arbitration award is usually approved by the court and turned into a legally binding judgment.

Mediation is the most common way for medical malpractice cases to be resolved. During mediation, trained mediators work closely with the disputing parties by listening to all sides of the dispute, identifying areas of concern, and exploring underlying interests and practical solutions. The mediator serves as an emissary or go-between for the parties. The mediator allows the parties to negotiate the financial terms of a settlement through a neutral party. The mediation process gives parties the opportunity to tell their story and to hear the other person while focusing on moving forward to a mutually agreeable settlement. Mediators remain neutral throughout the process and unlike a judge or a jury, mediators do not decide the outcome; the outcome is determined by the parties themselves when they agree to a settlement.

Securing a Fair and Just Compensation

Winning a malpractice suit against a doctor or medical facility is an arduous process. You must provide strong evidence, including expert medical testimony, that the health care provider was negligent, that the negligence caused significant injuries, and that you suffered compensable damages.

An important first step in this process is finding the right malpractice attorney – someone who has the knowledge, experience, and resources to gather the necessary evidence, litigate the case if necessary and guide the case to a successful resolution through ADR or a trial. Attorney Matt Menzer is a highly skilled, respected, and compassionate lawyer who has represented people injured by medical malpractice for more than 30 years. You can count on Matt to protect your rights and help you achieve maximum compensation for your injuries and damages.

If you were harmed by malpractice committed by a doctor, hospital or other health care provider, call Menzer Law at 206.903.1818 or fill out this online form and our team will review your claim at no cost to you. Rest assured; you will not pay any upfront no upfront fees when working with us. If we’re able to take on your case, we’ll do so on a contingency basis and will receive payment only after we recover compensation through a settlement or jury trial.

Disclaimer: This content is written for educational purposes and is intended to provide general information and understanding of the law. The information should not be used as a substitute for legal advice from a licensed attorney in your state.