By Gregory Freeman
With any medical malpractice case, or other lawsuit, the healthcare organization always comes to a decision point about whether to settle or fight the claim in court. Thinking ahead about how to make that decision can help you make the right choice when the time comes.
One of the first things to consider is comparing the potential settlement amount to the projected trial costs, including legal fees, expert witnesses, and the time investment, says Eleanor O. Aldous, JD, an attorney with Aldous Law in Dallas.
Also consider insurance coverage limits. If the defendant has offered their entire coverage, Aldous says that weighs strongly in favor of settling, since it can be very difficult, at least in some states, to seek recovery through personal assets as opposed to insurance coverage. The venue for trial also is important, she says. Is it a conservative venue with a conservative judge who is more likely to disfavor a plaintiff’s story and award less in damages?
“Research historical verdict patterns and consider the local jury pool characteristics and attitudes towards healthcare providers,” Aldous says. “Also, consider whether the healthcare provider in the area is a major employer.”
Your state’s caps on medical malpractice damages will be a major factor into whether to settle, she says.
“Keep in mind, the closer in time you get to trial, the stronger the likelihood settlement offer amounts increase. If there is an offer on the table that your lawyer has assessed as reasonable, are you in a condition medically or mentally to potentially wait in hopes of getting more value for a trial setting in a couple of years, or even longer for a potential appeal?” Aldous says. “Or are you in a condition now where taking a reasonable offer makes more sense for your immediate needs, (rather) than waiting for a little larger settlement much later?”
What if you disagree with your legal counsel about how to proceed?
“The ultimate decision-maker is always the client. If the client wants to proceed or wants to settle, their decision trumps all others,” she says. “You can always ask your lawyer about the potential to use tools like focus groups to explore what a trial of your case may end up looking like, both from a liability and damage standpoint. You can ask your lawyer if you are free to get a second opinion from another lawyer. Understand that this should be a last resort and may lead to a damaged attorney-client relationship.”
When it comes to assessing a case, the first and most important rule of thumb is to remember that this is not about the medicine, but rather how a jury will perceive the case, says Robin Gregory, JD, partner with the Wilson Elser law firm in New York City. Trials are not clinical exercises in fact-finding; they are human dramas influenced by perception, emotion, and storytelling, she says.
“No one walks away from a trial thinking it was a great or fruitful experience. Even if you win, the process is grueling and uncertain,” she says. “It’s not unusual to disagree with your legal counsel, and it’s important to recognize that, as a physician, you’re approaching the situation from a very different framework. Legal strategy is less about the scientific or clinical rightness of your care and more about what can be proven, argued, or defended in front of a jury.”
If you find yourself in disagreement with your counsel, the first step is to make sure you fully understand their reasoning, Gregory says. What are the risks and benefits they see in settling vs. going to trial? What elements of the case are they most concerned about?
If, after that review, you still feel uncertain, Gregory says you have these options:
- Talk to your malpractice carrier. They can offer perspective from experience and risk assessment.
- Consult trusted colleagues who are not involved in the case. Their clinical objectivity and distance from the legal process can be very clarifying.
- Discuss the general facts (with patient identifiers removed) with trusted laypeople — friends or family whose opinions you value. Sometimes a non-medical perspective can offer insight into how a jury might respond.
“Ultimately, you’re aiming to make the decision that will result in the most reasonable and least risky outcome, not necessarily the one that feels most vindicating in principle,” Gregory says.
Greg Freeman has worked with Clinican.com and its predecessor companies since 1989, moving from assistant staff writer to executive editor before becoming a freelance writer. He has been the editor of Healthcare Risk Management since 1992 and provides research and content for other Clinician.com products. In addition to his work with Clinician.com, Greg provides other freelance writing services and is the author of seven narrative nonfiction books on wartime experiences and other historical events.
Sources
- Eleanor O. Aldous, JD, Aldous Law, Dallas. Telephone: (214) 526-5595.
- Robin Gregory, JD, Partner, Wilson Elser, New York City. Telephone: (212) 915-5970. Email: [email protected].
With any medical malpractice case, or other lawsuit, the healthcare organization always comes to a decision point about whether to settle or fight the claim in court. Thinking ahead about how to make that decision can help you make the right choice when the time comes.
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