Most doctors and physicians provide excellent care; still medical malpractice is a reality, causing up to 225,000 deaths per year. Medical malpractice is defined as the negligent, substandard or unskilled treatment of a patient by a health care professional such as a physician, nurse, or dentist. If a patient has been injured because a health care professional failed to competently perform his or her duties, malpractice may apply.
Although laws are different state by state, there are some broad elements which must be present to prove medical malpractice. These include:
- a duty of care was owed by the physician in question
- the physician violated the accepted applicable standard of care
- the plaintiff suffered an injury eligible for compensation
- the injury was caused in fact by the negligent conduct
How Do Medical Malpractice Settlements Work?
Medical malpractice settlements and negotiations are conducted differently than normal personal injury cases.
- Statute of Limitations: An injured person who wants to sue a physician (or any health care provider/medical center) has a specified amount of time in which to begin settlement negotiations. In most cases across the country, plaintiffs have up to three years from the date of the injury to file suit. However, there are stipulations and exceptions which may alter this time frame, so it is important to contact an attorney as soon as you discover that medical malpractice may have occurred.
- Alternative Dispute Resolution Options: Once you call a personal injury attorney and it has been determined that it is appropriate and legal for you to initiate
a lawsuit, you can either ask for mediation, or start negotiations to affect a settlement. Either process should halt the statute of limitations until either a settlement agreement has been reached successfully through mediation, or the parties determine that settlement is unlikely, and therefore you continue with litigation. - Calculating Settlement Payments: As with any negotiation and settlement, the actual dollar amount of a medical malpractice settlement is negotiated between the injured party and the defendants and their insurers. Quantifiable and proven losses or expenses can be relatively easy to calculate, and are not generally a part of negotiations. It is the non-economic element of medical malpractice settlements which are generally more contentious. Levels of pain and suffering, for instance, are subjective, and therefore difficult to prove or quantify.
- Physician Approval: Generally speaking, claims for minor accidents are often settled by the medical professional’s insurance company, whether the defendant agrees he is at fault or not. However, in medical malpractice cases, health professionals often have the final say on an approved settlement, as the settlement will have a direct impact on their malpractice insurance. In fact, if a medical professional passionately believes that they have caused no harm, they may wish to fight valiantly to clear their name rather than settle.
- Court Approval: Assuming a settlement is successfully negotiated, it may be necessary to obtain court approval to validate the agreement, particularly in cases involving minors. This process is put in place to ensure against attorneys or insurance companies negotiating a settlement that does not appropriately benefit the long-term health of the plaintiff.
Medical malpractice settlements are not easy to define. Some may be easy, involving only a quick discussion between parties and a check being issued; while others may be contentious and drawn-out. If you believe that you have a case for medical malpractice, begin the process by calling an experienced medical malpractice attorney. We will review the facts of the case, look at the timeframe, and help you to determine next steps.
Having a layer by your side through negotiations and medical malpractice settlements is invaluable. The attorneys at Probinsky & Cole provide needed expertise and advice in your time of need – and handle all of the correspondence and negotiation on your behalf. Call us today for more information.
