What is my medical malpractice case worth?

Previously, I wrote about “What is my personal injury case worth.” Most of what is written in that blog is applicable for a medical malpractice case. However, there are additional challenges in medical malpractice cases due to the difficulties, time, and expenses involved in bringing such a case. The differences between a professional liability policy (like a Doctor’s malpractice policy) and a typical general liability insurance policy (like your auto policy) also impact the settlement value of a case. Here, we will discuss factors outside your control that impact what a malpractice insurer and doctor may agree upon to settle your medical malpractice case out of court.

As stated in my previous blog, the general consideration, what would the jury verdict be if my case were to go to trial, remains the overarching factor in determining case worth. Before any jury can allow money damages, the jury must find the defendant legally responsible or liable for the harm caused. For the doctor to be liable, a jury must find that s/he was (i) negligent and (ii) the doctor’s negligence caused the injury. In a medical malpractice case, liability is almost always going to be in dispute. Typically, the defense will put forth a strong argument supporting that the doctor was not negligent and that something outside the doctor’s control is what actually caused the harm. Most jurors have a high regard for medical professionals. Most medical professionals are deserving of a high degree of respect. Thus, jurors’ natural inclination is to believe the doctor when s/he testifies in effect, “I did my best for this patient, and this unfortunate outcome was outside of my control.” If the jury does side with the doctor or hospital, the verdict is a defense verdict for $0.00 and your case has no value. The law firm who brought the case is likely out of pocket hundreds of thousand dollars in case expenses plus attorney time.

Because medical malpractice cases are so difficult to win at trial, this difficulty or risk that a jury will find in favor of the doctor on liability, must be factored in when considering the value of the medical malpractice case in advance of trial. Accordingly, the value of any medical malpractice case is likely going to be significantly less than any reasonable dollar value of the harm suffered. Additionally, if the harm suffered is temporary (there was a mistake that caused harm, but you are ultimately going to be okay without any substantial lifelong consequences), the value of your case may not be as great as you may otherwise think. The costs of bringing the lawsuit must be factored into the value. If the harm caused was relatively brief, there may be no value at all since costs and expenses would outweigh what would likely be able to be recovered.

Another factor impacting the value of your medical malpractice case is insurance coverage. Most doctors in private practice have professional liability policies of $1,000,000.00 or $2,000,000.00. While this may seem like a lot, life altering or life ending harm caused due to medical error is well north of such policies. Collecting personally from a doctor or practice group is an option to consider but not a good one especially since most any judgment is ultimately dischargeable (i.e., wiped away) in a bankruptcy if the doctor is pushed to the brink.

Professional liability insurers have the same duty as general liability insurers to protect its insured from a judgment more than policy limits. However, unlike a liability insurer who can settle absent the policy holder’s consent, professional liability policies require the doctor’s consent before the insurer can settle the case. Many medical professionals are reluctant to acknowledge when an error was made. Furthermore, most medical malpractice settlements must be reported to the medical board.

Consequently, medical malpractice cases are tougher to settle out of court, and insurers may be protected from a bad faith or negligent failure to settle claim if they advised the doctor or practice group to settle the case and the doctor refused to give consent. Thus, a medical malpractice case is much more likely to go to trial than another type of personal injury case such as an automobile wreck case. Even a case that does go to trial and where the jury allows a noteworthy verdict in the tens of millions of dollars may not have an actual value of near the amount the jury allowed at trial.

I realize that this is a lot of lawyer speak that does not directly answer the question that is the title of this blog. I write this in attempt to give as candid and as open of a response possible to a valid but difficult question.

If you or a loved one has been permanently harmed due to something you feel is doctor error, you should look into whether or not you have a case that makes sense to pursue. Gather relevant medical records from the treating physician or hospital who you believe caused the harm as well as any subsequent records. Create a timeline of events – it does not have to be detailed – to provide a reviewing attorney with a framework of events that transpired. You will obtain a much better response from a reviewing lawyer with relevant medical records and timeline in hand. If you have questions regarding the value of your medical malpractice case or whether you have a medical malpractice case, please call. We will give you honest feedback and lay out our game plan for assessing your matter.

Bryan Baer

Attorney Bryan Baer has twenty (20) years of legal experience representing clients in serious and catastrophic personal injury and medical malpractice cases. He has been first chair in more than a dozen twelve-person jury trials on both the plaintiff and defense sides. Recognized as a leader in his legal community, he is frequently asked to speak at legal seminars on trial topics ranging from “Best Practices in Voire Dire” to “Maximizing Damages at Trial” as well as insurance issues such as “Navigating the Insurance Landscape” and “Injury Demands & Negotiations.” Learn more here.