Settling Too Soon? Expect Long-Term Consequences

Taking a malpractice case to trial is never something you look forward to, but settling the case is not always the best alternative. Knowing when to settle, and when not to, can be critical in minimizing your losses from a malpractice allegation, says Catherine J. Flynn, JD, an attorney with the law firm of Carroll McNulty and Kull in Basking Ridge, NJ.

Hospitals typically take the position that if there is a meritorious claim, the best strategy is to settle the case and not go forward with litigation, she notes. That approach doesn’t necessarily mean the hospital is admitting to a deviation from the standard of care; rather, it is acknowledging that the decision will be made by a lay jury and the ultimate outcome is uncertain. In some of those cases, settling is the right way to cut your losses.

However, that approach is not always the best. Settling the wrong cases and settling too soon can send the message that your hospital is weak and a soft target for predatory plaintiffs’ attorneys, Flynn warns. Flynn and her colleagues encourage their hospital clients to take a stronger stand and refuse to settle if there is a legitimate defense to the claim. The strategy is all the more important as malpractice cases tend to involve higher stakes, with more money on the line, she says.

“If there is merit to the defense, we will take it to a jury,” Flynn says. “The only cases in which we look for settlement are the really high-exposure cases where sympathy could overwhelm the jury, and there are not very many of those. The philosophy of not settling cases has been successful for 30 years.”

Hospitals adopting this approach tend not to see many frivolous claims, Flynn says. Plaintiffs’ attorneys have learned that the hospitals will not routinely settle small or frivolous claims and pursuing those claims to litigation is not worthwhile, she says.

The strategy appeals to many hospital administrators who resent having to settle cases in which they feel the hospital did nothing wrong, Flynn notes. Though the strategy works in the long run, administrators should understand that individual cases will require commitment to the expense of litigation, she says.

“These are significant cases, so going all the way to a jury will require experts and considerable time from your attorney team,” Flynn says. “You also have to have attorneys willing to walk into the courtroom and fight for the hospital. That may sound counterintuitive, but there are attorneys who are predisposed to settling and not eager to go in the courtroom and obtain a verdict.”

SOURCE

• Catherine J. Flynn, JD, Carroll McNulty and Kull, Basking Ridge, NJ. Email: [email protected].