How Settlement Negotiations Work in a West Palm Beach, FL, Medical Malpractice Case
Gregg Hollander | May 26, 2023 | Medical Malpractice
Roughly speaking, most medical malpractice trials do not resolve in favor of the plaintiff (the victim) in terms of a jury verdict. That doesn’t matter as much as you might think, however, since the great majority of claims resolve at the settlement table, not at trial.
Most healthcare providers prefer to avoid trial even if they believe they would likely win there. Medical malpractice settlement negotiations can be tricky, however.
Examples of Medical Malpractice
Following is an abbreviated list of some common examples of medical malpractice:
- Misdiagnosis of, or failure to diagnose, an injury or illness;
- Misprescribing medication;
- Leaving a medical instrument inside your body during surgery;
- Performing surgery on the wrong body part;
- Failure to properly monitor your condition after treatment; and
- Failure to order a C-section when necessary.
There are hundreds of other ways to commit medical malpractice.
The Legal Elements of Medical Malpractice: What You Have To Prove To Win
To win a medical malpractice case, you must prove each of the following five legal elements:
- The existence of a doctor-patient relationship.
- The specific duty of care that the defendant owed you. Typically, an expert medical witness testifies on this matter.
- The defendant breached their duty of care. You might need an expert medical witness to establish this one as well. Remember that duty plus breach equals professional negligence, a requirement for a finding of medical malpractice.
- You suffered physical harm. Once you prove you suffered physical harm, you can receive compensation for psychological harm such as pain and suffering or mental anguish.
- The defendant’s breach of their duty of care must have acted as a substantial cause of the harm you suffered. This causation must have been reasonably foreseeable to a knowledgeable medical professional.
You must prove all of these elements on a “more likely than not” (51+%) likelihood basis. Your job at the settlement table will be to convince the other side that you can win if your claim goes to trial.
Proving Professional Negligence
What exactly is “professional negligence”? Saying that it is the breach of a professional duty of care is a rather circular explanation. To clarify, “below average” treatment is not professional negligence. If it were, about 50% of all medical treatment would be negligence.
Instead, professional negligence takes place when a doctor’s treatment falls below the standard of care observed by a reasonably prudent doctor. Typically, an expert medical witness makes this determination.
The use of expert witnesses is routine in medical malpractice cases. There are two ways to use an expert witness, either as a testifying witness or as a consulting witness. A testifying witness offers sworn testimony at trial.
A consulting witness, by contrast, offers informal advice (and might prepare a written report) for two main purposes: (i) to help the lawyer understand the issues at stake and (ii) to act as persuasive authority to help the party who hired them gain an advantage in settlement negotiations.
An expert medical witness is almost always a current or former doctor, typically one who specializes in the subfield of medicine at issue in the case. Some expert medical witnesses are practicing doctors who take time out of their schedules to serve as witnesses.
The most sought-after witnesses, however, are former doctors who now work full-time as professional witnesses. These witnesses are used to being cross-examined, and they know how to remain poised. Professional witnesses are expensive, but they are often well worth the expense – especially if they help avoid a trial.
Causation is another legal element that you cannot win a medical malpractice claim without. You might need an expert medical witness to prove causation as well. You might need to prove, for example, that the doctor’s failure to order a C-section during delivery resulted in specific harm to the mother or the infant.
One way to challenge causation in a medical malpractice claim is to find a pre-existing medical condition that the patient suffered from. If the defendant can find a pre-existing condition, they might claim that the harm suffered by the patient was the result of the pre-existing condition, not the medical treatment.
- Current and future medical expenses;
- Current and future lost earnings;
- Pain and suffering and other intangible harms; and
- Incidental and out-of-pocket expenses.
You will need to document your losses as far as possible. If your losses are long-term, you might also need to bring in a financial expert to calculate your future medical expenses and future lost earnings.
The Statute of Limitations Deadline
In Florida, you usually have only two years to file a medical malpractice lawsuit. If you don’t file within two years of the date that the malpractice occurred (or two years from the patient’s date of death in a wrongful death lawsuit), your claim will die. Certain exceptions exist. If the medical malpractice is not obvious, for example, you have until two years after you discovered it or should have discovered it to file a lawsuit.
Don’t let the insurance company or the defendant lull you into missing the statute of limitations deadline by delaying the processing of your claim or deliberately stalling negotiations. If you miss it, they will have no incentive to negotiate with you since you will no longer be able to force them to pay by winning at trial.
Medical Malpractice Damages Caps
From 2000 to 2017, Florida applied caps on the amount of non-economic damages you could receive in a medical malpractice lawsuit. In 2017 the Florida Supreme Court declared these caps unconstitutional. Although these limits remain on the books, they are currently unenforceable.
Don’t Try to Go It Alone; Hire a West Palm Beach Medical Malpractice Lawyer
It is possible to resolve some West Palm Beach personal injury disputes without the assistance of an experienced medical malpractice lawyer. When it comes to a medical malpractice lawsuit, however, don’t even try. These sorts of claims are both scientifically and legally complex, and defendants fight hard to win.
Contact Our Medical Malpractice Law Firm in South Florida
If you’ve been injured in an accident, please contact our experienced personal injury lawyers in Florida at Hollander Law Firm Accident Injury Lawyers to schedule a free consultation today. We have three convenient locations in Boca Raton, Fort Lauderdale, and West Palm Beach.
Hollander Law Firm Accident Injury Lawyers – Boca Raton Law Office
7000 W Palmetto Park Rd #500
Boca Raton, FL 33433
Hollander Law Firm Accident Injury Lawyers – Fort Lauderdale Law Office
200 S.E. 6th Street #203
Fort Lauderdale, FL 33301
Hollander Law Firm Accident Injury Lawyers – West Palm Beach Law Office
319 Clematis St #203
West Palm Beach, FL 33401