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Guide to Medical Malpractice
On this Page
- How Long Will it Take?
- Initial Process
- Negotiating a Settlement
- Collecting the Money
- Attorney Fees and Legal Expenses
Medical Malpractice Topics
- What is Medical Malpractice?
- Types of Medical Negligence
- Why Sue a Doctor?
- What Makes a Medical Malpractice Case?
- Medical Malpractice State Laws
- Malpractice Suits Against Military Doctors
- Hospital and Emergency Room Malpractice
- How to Start a Medical Malpractice Suit
- Process of a Medical Malpractice Lawsuit
- Finding a Medical Malpractice Lawyer
Victims of medical malpractice often have serious financial issues directly related to their damages. Medical expenses and lost income associated with a medical malpractice case often bear down and put already troubled families into a downward financial spiral.
Given the backlog of cases in the US courts in general, it may take six months to a year or more before a medical malpractice claim is settled. Often times, this is too long for families struggling with out of hand bills. Your attorney can give you options to get some money up front, if your case stands a good chance at success.
How Long Will a Malpractice Lawsuit Take?
The time it takes to complete a medical malpractice lawsuit depends on the complexity and strength of the case, as well as the bandwidth of the court of jurisdiction. Most medical malpractice lawsuit will end up settling out of court, but still require that both sides file motions and go through discovery through the court process.
A medical malpractice attorney will be working to find the best balance between getting an injured patient and/or their family members their money quickly, while still making sure they get a fair amount.
Often times, a case may be settled faster for a lesser amount of money, but the family will potentially lose several hundred thousand dollars or more. Alternatively, cases that win at trial tend to have much greater payouts, but can take several years before any money is paid.
Initial Process of a Medical Malpractice Lawsuit
Discovery
Once the complaint has been filed and all involved parties notified of the lawsuit, both sides will begin the process of discovery. During discovery, both sides will request information, evidence and related documentation from the other in an attempt to gather the facts and build their respective cases.
During discovery, the defense and plaintiffs will need to hire an expert medical witness to consult on the case and to advise on the merits of the medical negligence complaint.
Expert Medical Witnesses
A neutral third party expert medical witness will be called upon by both sides to investigate the details of the case, establish the standard of care, and determine if and how medical negligence occurred.
Depending on the state in which the complaint was filed, the expert medical witness may be either a generalist, or a specialist in the field of medicine involved in the lawsuit. Each state has laws governing the extent of specialty required by an expert witness in a medical malpractice case.
In addition to establishing negligence, the expert witness must also determine if, and how the negligence lead to additional undue injury or damages to the patient.
If the expert medical witnesses both find that the medically accepted standard of care was not breached, and negligence had not taken place, then the lawsuit will likely be dismissed. If both experts disagree, then more witnesses may need to be called upon.
If the medical experts both agree that negligence likely occurred, then the lawsuit will proceed.
Negotiating a Settlement
If it is established, through the discovery period and medical expert opinion, that the case has merit, then the defense will likely begin their attempts to settle the case out of court.
Just like any other type of negotiation, the defense attorneys representing the medical malpractice insurance provider will do their best to minimize the amount of money that their client will have to pay out for the lawsuit. Additionally, they will try to avoid having to go to trial due to the cost of doing so.
On the other side, the plaintiff's medical malpractice lawyer will consider the strength of the case when determining an appropriate settlement amount. If the defense attorneys do not offer a reasonable settlement, then a good medical malpractice attorney would take the case to trial.
Why Settle?
Over 90% of medical malpractice cases settle out of court, and for good reason. Neither side wants to go to court, because it is expensive and time-consuming. Generally, only those cases where neither side can agree on a settlement amount will go to trial, and even then it is usually a last option.
Settlement Amounts vs. Jury Awards
The average out of court settlement for a medical malpractice lawsuit is just over $425,000, while the average jury award is now over $1 Million. So why not go to trial every time?
The fact is that medical malpractice litigation is very expensive, time consuming and not guaranteed. If an attorney passes on a settlement offer only to find that a detail in the case may jeopardize its success, then both that attorney and their client loses.
However, if the case is one that has a very good chance at winning at trial, and the defense does not offer a very handsome settlement, then trial may be necessary. In many cases the defense will wait until the last minute to offer a large settlement hoping that the plaintiff will take a smaller amount. There have been many cases where the defense will finally make a large settlement offer in the court room, right before opening remarks.
This is why it is so critical that victims of medical malpractice hire an attorney that has experience in litigating medical malpractice cases in court. If the defense knows that the plaintiff will not hesitate to take a case to trial, then they will offer a large settlement earlier to avoid the expense of trial, especially if the case is a strong one.
Collecting the Money
Once a settlement or successful jury verdict has been reached, the case is completed and the plaintiff is paid for all their damages. At this point, there are two common options for the injured patient and/or their family members to collect the money; Lump-sum payment or structured payments.
Structured Payment
Structured settlements or awards are often the option chosen in cases of birth injury, or malpractice to young children. The reason the courts often set up these types of funds is to ensure the child has money to cover long-term or permanent medical care.
In some cases, plaintiffs will later regret not receiving a lump-sum payment and attempt to "sell" their structured payments. This is often a mistake, as companies that buy these types of structure, "over time" payments offer much less than what the beneficiary would otherwise receive.
Lump-Sum Payment
A lump-sum payment is generally the best and least complicated way to collect the award or settlement money. Most plaintiffs and their attorneys favor this method of collection as it allows for the most options with regard to covering expenses and setting up funds for future medical care.
Paying Attorney Fees and Legal Expenses
Since almost all medical malpractice lawyers charge their clients on a contingency fee basis, they are not paid for their services or reimbursed for legal expenses until the case is concluded.
Upon conclusion of the malpractice lawsuit, the attorney will be paid as per the agreement outlined during the lawyer hiring process. Generally, attorneys will first recoup all the expenses that they paid during the prosecution of the lawsuit, after which they will be paid a percentage of the remainder for their legal services.