Most medical malpractice claims never reach trial. According to insurance industry statistics, injured patients withdraw about 65% of malpractice claims, settle about 27% of claims, and reach a jury in about 8% of cases.
This means that settlement will provide the most likely path to success in your malpractice case. Here is some information about settlement negotiations in medical malpractice cases and how you can help your injury lawyer get a fair outcome.
What Are Settlement Negotiations?
Sometimes, physicians and other healthcare providers injure a patient by failing to provide the proper standard of care. In these cases, the patient can seek compensation for their injuries. This claim goes to the healthcare provider’s malpractice insurance carrier.
The healthcare provider typically has a policy with the malpractice carrier, which obligates the insurer to:
- Defend the healthcare provider
- Pay any damages up to the policy limits
The malpractice carrier will investigate the claim before the injured patient files a lawsuit. If the investigation shows that the insurer will lose the lawsuit, the insurer will try to settle the claim.
How Do Insurers Negotiate Settlements?
Claims adjusters work to protect the interests of their employers (the malpractice insurer) and the healthcare providers they insure. They are not on the patient’s side and will fight to minimize the insurance settlement.
Documenting Your Claim
The more evidence you have to document your claim, the better your negotiating power. This evidence will typically include medical records and expert opinions from doctors who examined you after the medical error.
To prove medical malpractice, you will need to show that the healthcare provider failed to provide reasonable care under the circumstances. Reasonable care means the care that a reasonably prudent medical provider in the same discipline would have provided.
Many harms might not rise to the level of medical malpractice. For example, an unwanted outcome by itself will not justify a malpractice claim.
Medical errors supporting a malpractice claim typically fall into three categories:
Treatment errors occur when a medical provider does something that no reasonable medical provider would have done. Some examples of treatment errors include amputating the wrong limb, prescribing the wrong medication, or providing incompetent care.
Before providing treatment, the medical provider must obtain informed consent. Informed consent requires a discussion about the course of treatment, its side effects, its likelihood of success, and alternative treatments.
After the discussion, the patient or the patient’s legal representative must consent to the treatment. If a medical provider fails to engage in the discussion or obtain consent, a communication error has occurred.
The Initial Offer
Florida law requires insurers and claims adjusters to investigate claims before denying them. As a result, the insurer cannot simply deny all claims to force claimants to settle. But they can make a low offer to prompt settlement negotiations.
Your damages in a medical malpractice case include economic and non-economic damages. Economic damages include any financial expenses that you incurred or will incur in the future due to your injury.
Examples of economic damages include:
- Medical bills
- Prescription expenses
- Lost income
- Diminished earning capacity
Non-economic damages compensate you for the effect of the medical error on your life. These damages do not come with a price tag but deserve compensation.
Some examples of non-economic damages include:
- Physical pain
- Mental and emotional suffering
- Loss of activities
- Diminishment in your quality of life
In many cases, the initial offer from the claim adjuster will not even cover your documented economic damages. For example, if you have $30,000 in past and future medical bills and $15,000 in lost income, your economic damages would total $45,000. A claims adjuster might only offer $35,000, asserting that some treatment was unnecessary or that you missed work for other reasons.
Negotiating the Settlement
After the initial offer, you will try to negotiate with the claims adjuster for a fair settlement. You will often provide additional documentation and legal arguments to show that you deserve more than the initial offer. For example, opinion letters from several doctors might support your argument that your care was substandard and your ensuing treatment was reasonable.
Bear in mind the claims adjuster probably did not expect you to accept the first offer; the offer was probably far below the value of your case.
Instead, you should remain patient and allow your injury lawyer to make a counteroffer. The claims adjuster might use time delays to pressure you into accepting a low offer. Claims adjusters know you have medical bills to pay and may be unable to work. But accepting a quick settlement might put you in a worse position financially.
Accepting or Rejecting an Offer
An experienced injury lawyer can evaluate your case based on the medical error and how it affected your life. Sometimes, your lawyer will bring in financial and medical experts to help estimate your case’s worth. You will know that you have received a fair offer when it approaches your lawyer’s valuation.
If you cannot get a fair offer, you may need to file a lawsuit. Oftentimes, a lawsuit will push the claims adjuster to increase the settlement offer. Insurers do not want to pay lawyers to defend a case that they could settle.
Benefits of a Settlement
Medical malpractice settlements benefit both the patient and the medical provider. For the patient, a settlement can be completed quicker than a lawsuit. You also remove the uncertainty of a jury verdict.
For medical providers, a settlement can save them the publicity of a jury trial. And a settlement might cost less than litigation if the evidence shows negligence.
Since both parties can benefit from a settlement, the time and effort of negotiating a settlement is usually worthwhile.