Valuing a Medical Malpractice Claim

NUISANCE VALUE

Attorneys who file medical malpractice lawsuits without thoroughly investigating them first do everyone a disservice. Malpractice lawsuits should only be filed after the records are obtained and reviewed by an expert. Some attorneys hope to harass doctors into settlements simply by filing suits. This is called going for nuisance value. While this might sometimes work with ordinary injury lawsuits, in medical malpractice cases, it usually leads to huge, lengthy, and bitter legal battles with the doctor, his or her insurance company, and his or her lawyer.

VALUING THE CLAIM

In medical malpractice cases, as in most personal injury cases, valuing a case is no simple task. There is no book, journal, or scientific study that tells lawyers that a broken arm is worth X or a torn rotator cuff is worth Y.The value of a case is based on many factors. Some of the factors that should be considered in valuing a medical malpractice claim are:

1. the nature of the injury;

2. the effect of the injury on customary and usual activities;

3. the permanence of the injury;

4. the treatment involved;

5. the cost of the treatment;

6. the effect on employment;

7. the effect on life style;

8. the credibility of the witness;

9. the likely weight to be given to the witness’ testimony;

10. the weight of the medical science behind the claim; and,

11. the jurors’ potential feelings for the parties-sympathy for the plaintiff as well as sympathy for the defendant who has been blamed.

Many of the factors that go into valuing a claim cannot be properly evaluated at the beginning of a lawsuit. The lawyer cannot know how a jury may react to the doctor until he or she has had an opportunity to meet him or her at a deposition. Thus, it is unrealistic for any lawyer to advise the client of a specific dollar value of the claim before this stage.

Any lawyer who tells a client that the case is worth a specific amount at the very first meeting is more likely making a sales pitch than offering an educated opinion. Better attorneys know that at the outset of the case, one can really only provide a preliminary estimate of a range of values for the case. Even as the case progresses, better attorneys recognize that it is more accurate to discuss value in terms of a range than anyone number.