Families and individuals who suffer from incorrect medical handling deserve to be heard.
For many, once the dust has settled after a poorly handled procedure or even a death, conversations about medical malpractice lawsuit settlements are bound to occur.
We have written about medical malpractice in the past (particularly how to file a case and the differences between malpractice and negligence), we have never spoken about the common outcomes once a case is over.
While the outcome of your case depends largely on the facts, documentation at hand, and the state in which you live, we have outlined a general framework to guide you through what damages are available, how they are calculated, and what this means for your settlement amount.
Asserting your damages
In the very beginning of your lawsuit, you and your attorney will discuss your case, its context, and any potential damages that you might be awarded. During these early discussions, it is important you provide as much documentation as possible about the various losses resulting from the malpractice.
For instance, time off work, continuing disability or medical treatment, and even death, are all damages that can be accounted for in a court of law. You further have the ability to sue for that which is not easily calculated in money, such as loss of a normal life, pain and suffering, even loss of consortium in the case of a deceased loved one.
Once this information is compiled, it’s time to prove your case to try and secure the best outcome possible.
Proving Malpractice
In a medical malpractice case, there are two things you are trying to prove:
- The doctor and/or hospital did not follow the standard of care
- As a direct result of this negligence, the plaintiff suffered damages
What makes this particularly challenging is supporting this correlation as negligence does not always lead to direct harm. This is particularly true when the patient in question had preexisting conditions as defendants will often argue that the patient was beyond helping.
However, there are certain types of negligent acts that are exempt from the full extent of this challenge. They include:
- Failure to diagnose correctly, thus leading to incorrect care
- Doctor’s failure to comply with the standard of care, thus resulting in wrongful death
- Medical negligence leading to secondary complications such as leaving foreign instruments within the body
No two medical malpractice cases are entirely the same, so proving your case relies on both the misconduct present and the evidence supporting your claims. The stronger your support, the stronger your case, and the stronger potential for a better settlement.
Discovering Your Evidence
In law, the discovery process is the phase in which your supporting evidence is gathered. If the evidence is sufficiently clear, it raises your chances of earning a higher settlement amount.
In medical malpractice, you will find two types of evidence most useful: written discovery and testimony.
Written discovery materials are anything obtained in document form. These include:
- Interrogatories: written questions answered by your opponent
- Requests for Production: document requests from your opponent
- Medical records
- Video camera footage
- Written reports and/or personal accounts
Testimony works a bit differently, as it requires statements given directly from a witnessing party. Testimony comes in both written and verbal form, such as:
- Written reports from doctors and/or hospital staff documenting the events
- Statements made at depositions
- Written statements made from expert witnesses
Not all types of discovery are equally important. In medical malpractice, the testimony of experts is generally seen as more valuable than the information found in any given chart or employee handbook.
The Expert Witness
An expert witness is a top performing expert in their field.
In the process of a medical malpractice case, your expert will speak on certain facets of the case to give an overview over where there were breaches in the standard of care, whether someone was at fault, and further, what could have been done to secure a better patient outcome.
The better your expert testimony, the more likely it is that your medical malpractice claims will hold up under scrutiny and be eventually settled out of court. This is because the opinions of such experts are one of the most reliable sources of information when assessing what went wrong.
All this information not only proves your case, but shows the extent of damages owed.
Types of Damages
There are two types of damages in a medical malpractice case: economic damages and non-economic damages.
Economic damages are easier to prove because they rely on quantifiable numbers. For instance, losing 10 weeks of pay is a concrete, easy-to-verify damage that would fall under this category.
Conversely, non-economic damages are far more challenging to prove as they rely on the subjective experience of the individuals and their families. For instance, if a person loses motor function after a traumatic brain injury, they might still be able to hold a job, but no longer enjoy the same activities before the accident. In this case, the non-economic damage could fall under pain and suffering.
Unfortunately, there is no way to quantify in dollars and cents how much pain and suffering “costs” an individual. Therefore, heated debates follow discussions of non-economic damages, making them a variable success in case settlements.
How Settlements are Made
The way medical malpractice settlement amounts are calculated is a complicated process of proving damages and negotiating a price that both the plaintiff and the insurance companies for the defendants can agree upon.
Defense attorneys that work for the hospital and/or doctor involved in the lawsuit are answering to the insurance providers covering these professionals. They have to work with the insurance companies (who often set maximum payout limits) to defend their case and keep it beneath a certain settlement amount.
Taking the above into account, your attorney will develop a settlement amount based on your established damages even though this may not be the final amount you walk away with.
Should You Try The Case?
Generally, trial is only recommended if the defendants are not willing to offer adequate compensation for damages and are resistant to negotiating their position.
While trial can potentially yield a larger settlement, it is a very risky move as very few plaintiffs actually win their malpractice cases. This means what you will likely accumulate a large amount of attorneys fees for trial preparation and trial itself without a guarantee of success.
Should you lose, you might find yourself in more debt that you started with.
Should You Settle?
90% of medical malpractice cases settle out of court. Out of the 10% that move on to a jury trial, the plaintiff only wins 20% of the time. Furthermore, while cases which settle generally earn plaintiffs between $425,000 on average according to MedScape, jury trials that are won tend to reward much higher sums sometimes exceeding $1,000,000.
While it’s a balancing act of pros and cons, the risk of not settling is stacked to a plaintiff’s disadvantage. For many individuals, settling their case out of court is a much more profitable and cost-effective option.
Tucson Medical Malpractice Lawyer
Having a Malpractice Attorney who knows the right information to seek from the start is integral to the success of your case. This is because there is a limited amount of discovery that can happen within a case and it’s important to make a few mistakes in the process as possible.
Bobbi Berry is an experienced malpractice attorney that can help you in the difficult first steps after deciding to file a case. With over 25 years of litigation experience, the BBerry Law Office can discuss and handle your claims from initial assessment all the way through litigation and trial. Call (520) 347-8484 to schedule a consultation to explore your options for a fair outcome.