Settling Medical Malpractice Claims
SETTLING THE CLAIM
As a general rule, medical malpractice cases are difficult to settle for a number of reasons that have nothing to do with the merits of the case. First, many malpractice insurance agreements contain a provision that the insurance company cannot settle the case without the doctor’s written consent. Since in most cases it is not the physician’s personal assets at risk, there is little incentive for the doctor to consent to a settlement.
Second, unlike a car accident or a slip-and-fall case, malpractice cases deal with a person’s professional reputation. Human nature being what it is, no one likes to admit making a mistake in performing professional responsibilities. Even when the doctor clearly has committed malpractice, he or she may be unwilling to admit this to the other side or even to him- or herself.
Doctors, quite naturally, are often extremely offended when they are con- tacted by medical malpractice attorneys concerning a possible claim. Ifthe case is settled, it still shows up as a black mark on the physician’s record. Insum, doctors tend to be extremely reluctant to settle these kinds of cases without a bitter battle.
Further, political action groups on behalf of physicians and insurance companies have propagandized that medical malpractice litigation is out of control and consistently results in unreasonably large awards to the plaintiff. This message has actually served as a grassroots form of tort reform, which instills in potential jurors a bias in favor of doctors. Jurors may fear that a plaintiff’s verdict will somehow affect the medical community in general and, in turn, the jurors themselves. For example, the jurors may fear that a large malpractice award will drive doctors out of their community, making it more difficult for the jurors to be treated by the doctor of their choice.
Because of these factors, there may be very little desire for a defendant doctor or his or her insurance company to settle a case when they know that there is a good chance the jury, regardless of the strength of the patient’s evidence, will find in favor of the doctor. Ifa doctor is willing to settle, remember that a settlement is a compromise. More often than not, a plaintiff who is considering a settlement offer must recognize that he or she will likely have to accept something less than he or she desired. Given the difficulty of winning a medical malpractice jury trial, you should strongly consider settling if the offer approaches the realistic value of the claim.