In this section we show how an attorney might go about negotiating a medical malpractice claim. Of course, every case is different. Your attorney’s approach may differ from the approach in this example. Always follow your attorney’s advice.
In the hypothetical medical malpractice case below, Sean is a 16-year-old boy who entered the hospital for what should have been a routine examination. Because of a doctor’s negligence Sean suffered unnecessary paralysis. Subsequently, his parents retained an attorney and sued the doctor and the hospital for their son’s present and future damages.
Sean is a 16-year-old boy. For the last couple of days he’s complained of belly pain and nausea. At first his parents gave him some over-the-counter medications. But when his condition worsened and he started vomiting, his parents took him directly to the local hospital’s emergency room.
The admitting nurse went through the normal list of questions for patients who are about to be admitted. One of the questions she asked was how long it was since Sean last ate. His father told the nurse Sean had breakfast approximately one hour before they came to the hospital.
This was an exceptionally busy morning at the hospital’s emergency room. All of the doctors were busy treating one patient after another. After waiting for about three hours, Sean was finally called in for an examination. The attending doctor briefly glanced at Sean’s chart and asked him to describe his symptoms. Sean told the doctor he had belly pain, nausea and vomiting. Without asking Sean or his parents any further questions, the doctor suddenly departed.
Minutes later, Sean was taken from the emergency room to the radiology department. The emergency room doctor apparently ordered an MRI (Magnetic Resonance Imaging) exam. An MRI is one of the standard tests for patients presenting with belly pain, nausea and vomiting. Before the MRI began, Sean was administered a saline and valium drip as part of the pretest procedure.
The purpose of a valium drip is to relax the patient, calm any nausea and help relieve the patients’ anxiety about the test. The valium also produces drowsiness. Sean was appropriately drowsy when the MRI began. Groggy from the valium and exhausted from his symptoms, Sean fell asleep during the procedure. Shortly after, he began to vomit. Because the MRI machine obscured his upper torso, the operator couldn’t see Sean’s face. If she could, she would have seen Sean vomiting.
As the test concluded, the MRI technician asked Sean how he was feeling. Sean was nonresponsive. As Sean was slowly removed from the machine, the technician began to see his upper torso. She noticed Sean’s hospital gown was full of vomit, and he was not breathing. After calling a code blue, several doctors and nurses came in and began to resuscitate Sean.
Sean was eventually revived, but four minutes had already passed. During that time Sean was deprived of oxygen. While evaluating Sean’s condition, the doctors and nurses noticed Sean had a small amount of paralysis in his right hand and fingers. It was subsequently determined the paralysis was a direct result of oxygen deprivation.
An ensuing investigation by hospital authorities revealed the emergency room doctor erred. He misread Sean’s chart. The doctor admitted he hurriedly read Sean’s admitting chart. He said when he read Sean’s chart he thought it said Sean had eaten 11 hours ago and not one hour as the chart actually stated.
The medical community understands and agrees medical personnel should never perform an MRI unless the patient has fasted for at least 10 hours. The reasons are clear. If it’s less than 10 hours, there may still be food in the patient’s stomach.
If there’s food in the patient’s stomach, there’s always a possibility that while sedated, the patient may aspirate (vomit) the food into his throat, causing him to choke on his own vomit. The smaller the time gap between the last time the patient ate and the injection of valium, the greater the possibility of vomiting.
Sean’s paralysis occurred as a direct result of the the doctor’s and hospital’s negligence. His parents retained an attorney and filed a medical malpractice lawsuit naming the doctor and the hospital as defendants. After pretrial discovery concluded, Sean’s attorney sent a demand letter to the attorneys for the doctor and hospital. The demand letter marked the beginning of settlement negotiations.
The Negotiation Process
When entering settlement negotiations, an attorney must first be prepared and second possess the requisite skills to control the negotiations and their outcome.
Before entering into settlement negotiations, Sean’s attorney must thoroughly prepare the case. To prepare, she will:
- Interview all necessary witnesses
- Take the depositions of anyone closely linked to Sean’s injuries
- Send demands for interrogatories and requests for production to the defendants’ attorneys
- Subpoena Sean’s medical records
- Have one or more medical experts examine Sean and his medical records
- Possibly employ a private investigator to look into the doctor’s past to see whether anyone sued him before for medical malpractice
- Seek out other patients of the doctor or hospital who may have sufferred similar injuries
2) Remaining in Control
When Sean’s attorney filed the lawsuit, the insurance company’s claims adjuster turned over the claim to the company’s attorneys. Insurance adjusters seldom, if ever, negotiate medical malpractice claims.
Settlement negotiations in a malpractice case normally begin soon after completing pretrial discovery. They take place between Sean’s attorney and the attorneys for the insurance company. This is the time when Sean’s attorney will use all her efforts to control the pace and substance of the negotiations.
A seasoned malpractice attorney knows the importance of not letting the defendant’s attorneys control the negotiations. She knows to remain calm and not take anything personally. Defense attorneys, especially in medical malpractice cases where hundreds of thousands or millions of dollars are at stake, can be vicious. They’ll use any tactic they can to shake your attorney’s confidence.
Insurance companies rely on sophisticated computer programs to assist them in medical malpractice cases. Along with other information these programs can tell the insurance company a lot about your attorney.
For example, the insurance company can tell whether a plaintiff’s lawyer always settles, or whether he actually goes to trial if the settlement offer isn’t high enough. Some lawyers threaten to go to trial, but when it comes down to it, they don’t have the skills and often the courage it takes to fight for their client.
When an insurance company and its attorneys know a plaintiff’s attorney is one who seldom, if ever, goes to trial they’ll offer less to settle the case. But when an insurance company knows a lawyer won’t hesitate to go to trial, it will usually offer to settle for a much higher amount. Insurance companies know anything can happen in a medical malpractice trial. They’re especially leery of juries that award much, much more than the plaintiff’s attorney originally asked for in the settlement demand.
If your attorney is a seasoned veteran of trials, she knows how to negotiate. She knows not to let her emotions get in the way. She has the strength of conviction to look you in the eye and say, “The settlement offer isn’t high enough. Let’s go to trial. I think I can convince a jury to award much more.” That takes a lot of courage.
It’s tempting for any attorney to look at an offer the insurance company makes for hundreds of thousands, or even millions of dollars and want to accept it. It’s a way for the attorney to earn a nice fee and not have to spend weeks preparing for and attending the trial. Your attorney should have what’s necessary to take on the insurance company’s attorneys and fight for every penny you deserve.
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