In this section we continue to discuss how your attorney might go about negotiating your medical malpractice case. Every situation is different. Your attorney’s approach to negotiating may differ from another’s. Be sure to follow your attorney’s advice.
There are several steps that precede the negotiation process. Your attorney will go through each step as she continues to build a malpractice case. They include:
Your Initial Consultation – Your case has to start somewhere. It begins with your sitting down with your attorney to discuss the facts of your case.
Entering into a Contractual Fee Agreement – Your attorney will require you to sign a contingency fee agreement.
Gathering Initial Evidence – After retaining your attorney, she’ll begin to build your case by more closely scrutinizing the evidence you already gave her. She’ll speak with your witnesses and those loved ones who your injuries affected.
Sending the Notification Letter – When your attorney is comfortable with the facts and evidence she has so far, she’ll send the notification letter. This letter puts the doctor and the hospital (the defendants) on notice you were the victim of their medical malpractice, and you intend to seek compensation for your injuries.
Filing a Lawsuit – Filing a lawsuit allows your attorney to use the rules of evidence to gather greater amounts of evidence. These rules give her the right to subpoena documents, take depositions of adverse witnesses, send out interrogatories and requests for production, and to look for additional supportive evidence. With few exceptions, courts require an attorney to file a lawsuit to initiate pretrial discovery.
Pretrial Discovery – Pretrial discovery is the point in the case when your attorney begins gathering evidence you may not already have. It’s what the doctor and the hospital don’t want you to see. It’s the “underbelly” of the case, the place where your attorney gets to work digging up as much evidence as she can.
By using what is called a subpoena duces tecum, your attorney will obtain such items as hospital documents, the doctor’s personnel file, hospital intra-office memorandums about the case and more. This is when your attorney begins taking the depositions of the doctor, attending nurses, hospital technicians and others who would otherwise never have cooperated without a subpoena.
Pretrial discovery applies to both sides. It’s likely your attorney will take your deposition as well as those of other witnesses she intends to call to testify at trial, such as medical experts. The attorney may also research medical studies, other medical literature and more. Pretrial discovery also includes multiple court appearances, where attorneys for both sides will argue legal points.
The Demand Letter – Once your attorney completes pretrial discovery, she’ll have a pretty good idea about the strengths and weaknesses of your case. So will the defendants’ attorneys. Based on the strength of the evidence, your attorney will write a demand letter. The letter is the culmination of the pretrial process. In the letter your attorney will list your special and general damages.
Your special damages include the present and future costs you incur as “a direct and proximate cause” of the doctor’s negligence – his medical malpractice. These can include ambulance fees, prescription and over-the-counter medications, emergency room fees, present and future doctor and hospital bills, etc. They even include the cost of gasoline used to drive you back and forth to doctors’ appointments and therapy, and even the fees you paid to park at the hospital! Special damages also include your lost wages and any property damage.
Your general damages include your mental anguish, emotional distress, pain and suffering and even loss of consortium (loss of the intimate relationship with your spouse).
In the demand letter your attorney will break down and itemize the amounts of your special and general damages. She’ll then add them together and come up with a total amount. That’s the amount she demands for a settlement.
It’s rare for an insurance company, through its attorneys, to respond to a demand letter by agreeing to pay the full demand amount. Instead, the insurance company will either ignore the letter, send a response refusing to accept liability or respond with a counteroffer.
Every case is different. If the insurance company ignores the letter or denies liability on the doctor’s behalf, the case begins to move closer to its trial date. Unless the insurance company is dead-set on going to trial, settlement negotiations slowly come into focus. It’s the time for any standoff to end and negotiations to begin.
Because evidence gathered during pretrial discovery is usually the same evidence at the trial, attorneys for both sides usually have a good idea where to begin settlement negotiations. Of course, your attorney wants to settle for as close to the amount in her demand letter as possible.
It’s still possible the insurance company’s attorneys won’t agree to negotiate. They may think their case is strong enough and your case weak enough for them to win at trial. Realistically though, unless your attorney is inexperienced, she wouldn’t have filed a lawsuit unless she knew there was strong evidence of malpractice. Most malpractice lawsuits do have truth to them. How much truth is the basis of all settlement negotiations.
Insurance companies do not like taking a chance with a trial, especially when there’s strong evidence of medical malpractice. There’s too much at stake. Juries have decided cases based on their emotions more than the facts of the case. As a result their verdicts can be astronomical and well beyond any settlement that all parties could otherwise have reached.
Because special damages can be objectively measured, their amount is seldom a point of contention in settlement negotiations. Evidence of special damages is relatively easy to obtain. A hospital bill for $10,000 is clear proof of the amount. Receipts for prescription and over-the-counter medications are also clear proof. If there’s a point of contention with special damages, it’s usually about the amount of future medical bills and treatment.
The most obvious disagreement in the negotiations is the amount of general damages. This includes compensation for pain and suffering, emotional distress, mental anguish or loss of consortium. In other types of personal injury cases general damages are normally determined by multiplying special damages by anywhere from 1.5x – 4x or higher. This is normally not the case in medical malpractice cases.
For example, in the previous section, “Negotiating Medical Negligence Claims” Sean was a 16-year-old boy who suffered partial paralysis as a result of a doctor’s malpractice. For an otherwise healthy 16-year-old to suffer unnecessary paralysis is unthinkable. As a result, multiplying his special damages by two, three or four times isn’t right. It’s much too low.
Determining the Settlement Amount
So how does your attorney come up with the right amount to begin negotiations, and what does she base that amount on? There are several answers to this question.
The obvious answer is by using the amount in her demand letter. But even that amount had to come from somewhere. It’s not just a nice round figure your attorney picked out.
One of the methods your attorney may use is researching her own files. An experienced attorney, especially one with substantial medical malpractice history, can look at former paralysis cases. By doing so, she can gain a good reference point. Although each case has a unique set of facts, she at least can gain a idea of what insurance companies settled for in similar cases or what juries awarded.
You can be sure the insurance company’s attorneys are doing the same thing. They’re especially aware of your attorney’s past medical malpractice cases and the amounts she’s settled for.
Another method your attorney may use is a study of court records. Court records are an excellent source of reference material. A smart attorney can look up cases involving the same doctor to see whether he was previously sued for malpractice. If so, she can learn what amount he settled for or what the jury awarded. Because most medical malpractice cases are settled after a lawsuit is filed, there’s always a court-approved settlement document filed in the county records department.
A third method is consulting with other personal injury attorneys in the same area. Although medical malpractice is a competitive field, once someone hires an attorney, other malpractice attorneys are usually glad to share their knowledge and experience. This is especially helpful when another attorney has dealt with the same insurance company on one or more medical malpractice cases.
In the end your case’s negotiations will succeed or fail on your lawyer’s skill, experience and determination. You must place your trust in your attorney. When you do, step back and let her work. You’ll be glad you did.
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