Settlement of Medical Negligence Cases

Settlement of medical negligence cases can be an advantageous solution for both plaintiffs and defendants. Because of the potential for high damage awards that could exceed insurance policy coverage, it is often prudent for doctors, nurses or other health care providers to resolve medical malpractice claims. In addition to the potential for high damages, medical providers must also be concerned with potential harm to their reputation that could from an adverse judgment. Further, payment out of a defendant physician’s insurance policy will be reported to the Board of Registration of Medicine and will become a public record.  Conversely, because medical malpractice claims can present some of the most challenging and difficult claims and because the odds overwhelmingly favor the defendant medical providers, it also prudent for plaintiffs to keep the door for potential medical malpractice settlement open.

The road to settlement, if appropriate, requires an initial valuation of the case. Valuation of a medical malpractice claim or any personal injury claim involves a combination of personal experience, verdict or settlement history for claims involving similar facts, likelihood of proving negligence and causation, the costs of trying the case, and obviously, the severity of the damages.  Plaintiff’s and defendants should attempt to value the case as soon as all the facts are available.

One of the first hurdles to settlement for plaintiffs involves the screening of a medical malpractice tribunal. In Massachusetts, a medical malpractice tribunal is convened to determine whether the evidence presented is “sufficient to raise a legitimate question of liability appropriate for judicial inquiry.” Even though most plaintiffs are able to pass this initial screening test, the tribunal can also present a difficult stumbling block for plaintiffs.

Because medical negligence cases often involve facts beyond the knowledge of most laypersons (i.e, people without advanced medical training), it is necessary to have the case reviewed by an impartial medical expert who is trained in the same field of medicine as the defendant medical provider. The plaintiff’s medical expert will usually be called on to write a letter or an affidavit to be included in the plaintiff’s offer of proof that is submitted to the medical malpractice tribunal.

The medical malpractice tribunal is a great opportunity for the plaintiff to set forth a convincing theory of the case and demonstrate negligence, causation and damages, which can pave the way for potential settlement discussions later on in the case. Strong arguments for liability and causation in the offer of proof can assist in achieving earlier resolution of medical negligence claims.

In addition to direct settlement talks with the insurance carrier, there are other options that may assist in reaching a settlement or resolution in the case. Mediation may be appropriate and efficient vehicle to bring about settlement. Typically, mediation involves the selection of a mutually acceptable mediator who is usually an attorney or a retired judge. The mediator will work with both sides to explore whether a settlement is possible and will often be ready to point out both weaknesses and strengths in both sides.

The use of arbitration and more frequently, high/low arbitration, can also assist in reaching settlement. In high/ow agreements, the parties agree to a floor and ceiling on any award by an arbitrator or a jury. If the defendant wins, and the insurance carrier will still be required to pay the lower amount agreed to by the parties. Alternatively, if the plaintiff wins, the insurance carrioer will be required to pay more than the agreed upon “high” for the case.

Knowing the strengths and weaknesses in a case and appropriately valuing the claim from the beginning can be helpful towards reaching a successful settlement.

Weymouth medical malpractice attorneys Curran & Desharnais, P.C. can assist in the evaluation and resolution of your medical malpractice claim.

If you have questions regarding a medical negligence matter, contact attorney Joseph Curran of Curran & Desharnais, P.C. to discuss the situation and determine the next best steps, or call us directly at 781-618-3197.

injury, medical malpractice, Uncategorized, wrongful death

If you enjoyed this post, please consider to leave a comment or subscribe to the feed and get future articles delivered to your feed reader.

Leave Comment

You must be logged in to post a comment.