How Settlement Negotiations Work in a Medical Malpractice Case
Gregg Hollander | January 5, 2021 | Medical Malpractice
Medical malpractice cases often involve more than a physical injury. The doctor-patient relationship is special, and medical malpractice can feel like a betrayal of that relationship.
But, in most cases, your lawyer will not even talk to your health care provider. Instead, the provider’s malpractice insurer will provide a legal defense. Your lawyer will negotiate with the insurance company to try to resolve your case.
Here are some facts about settlement negotiations in a medical malpractice case that you should know.
Medical Malpractice Under Florida Law
In Florida, medical malpractice cases are unique among personal injury claims. Florida law requires lawyers to investigate malpractice claims before filing a lawsuit. The lawyer must also provide each health care provider with notice of the claim.
This notice includes a list of providers that examined your medical injury and the medical records they reviewed. This due diligence will prepare your lawyer to negotiate with your health care provider’s malpractice insurer both before and during a lawsuit.
Convincing a Malpractice Insurer to Settle
Under Florida law, a health care provider is liable for medical malpractice if:
- The health care provider breached the prevailing professional standard of care for health care providers.
- The breach caused an injury that is not a normal part of the medical treatment.
- The injury resulted in damages to the injured patient.
If a malpractice insurer believes you lack evidence that proves these elements, it will probably not settle the case. Thus, your lawyer’s investigation will focus on evidence that supports these elements.
How Negotiations Usually Work in Medical Malpractice Cases
Malpractice insurers have a financial interest in not settling cases. Insurers will only settle if they see that fighting the case could cost more than settling the case. Insurance companies fear big jury awards. Successful negotiations take advantage of this fear by presenting clear evidence of liability.
Typical Medical Malpractice Negotiation Process
A medical malpractice claim usually begins with a letter to the health care provider. This could be the formal notice required by Florida law, or it could be a simple “heads up” letter. In either case, the health care provider will forward the letter to the malpractice insurer.
The insurer will usually take no action during your lawyer’s pre-lawsuit investigation. Instead, the insurer will wait until the formal pre-suit notice required under Florida law. By waiting, the insurer knows that evidence supports the medical malpractice claim and that you intend to pursue it.
After receiving formal notice, the insurer will investigate the merits of the case. After its investigation, Florida law allows the insurer to deny the claim, make a settlement offer, or admit liability and request arbitration on the amount of damages.
This is when the settlement process begins in earnest. Your lawyer will exchange offers and counteroffers to try to reach a mutually agreeable settlement. If a settlement is reached, you will release all your claims in exchange for an insurance check. If a settlement is not reached, your lawyer can file a lawsuit.
What a Medical Malpractice Settlement Agreement Could Cover
Damages arising from a medical error can be both economic and non-economic.
Some examples include:
- Medical costs: The out-of-pocket costs of your medical treatment, physical or mental therapy, and drugs can be covered by your settlement.
- Lost wages: If you missed work due to a medical error, your lost wages should be part of your settlement. These damages are particularly important in wrongful death claims where the victim of medical error has died.
- Diminished earning capacity: When a medical injury results in a long-term condition that prevents you from continuing with your chosen profession, the loss of earnings can be included.
- Pain and suffering: When a medical error results in a painful condition, the settlement can compensate you for a reduction in your quality of life.
You and your lawyer will quantify these and other damages before negotiating a medical malpractice settlement. This allows your lawyer to explain your negotiating position to the insurer.
Risks of Medical Malpractice Negotiations Without a Lawyer
Nothing in Florida law prevents you from negotiating with your health care provider before talking to a lawyer. In fact, when you first suspect that you have been injured due to a medical error, your instinct might be to reach out to your doctor to “work something out.”
However, malpractice policies usually force doctors to report all claims of medical error. Trying to negotiate with your doctor’s insurer without a lawyer could place you at a severe disadvantage.
For example, if an insurer knows that you are unrepresented, it may:
- Pressure you to settle: The insurer knows you need money to pay for medical treatment to overcome your injuries. Moreover, the insurer will know that you may be unable to work. Insurers might use pressure tactics, like artificial deadlines, to push you into a quick settlement.
- Make a low-ball offer: If you have not met with a lawyer, an insurer may assume you are unaware of the value of your medical malpractice claim. An insurer may use this assumption to make a low offer to see if it can settle for less than the value of the case.
- Delay: An insurer does not fear a lawsuit when you are unrepresented. As a result, the insurer may drag out the negotiations in an attempt to outlast you and force you into a low settlement.
The easiest way to avoid these tactics is to find a medical malpractice lawyer to negotiate on your behalf. Lawyers have experience and training in negotiation. More importantly, medical malpractice lawyers understand the negotiating techniques insurance companies use and how to deal with them.
Settlement Negotiations Can Produce the Best Outcome
Settlements can produce an outcome that helps you and the malpractice carrier much more quickly than a lawsuit. Besides resolving the case more quickly, both you and the insurer avoid the risk of losing before a jury. As a result, negotiated settlements are often the preferred outcome.