Victims of a medical misdiagnosis or medical malpractice understandably worry about having to go to trial. In fact, it is one of the most commonly asked questions a medical malpractice lawyer receives.
Settling a case is essentially a negotiation between the wronged party, known as the plaintiff, and the party or parties who caused harm to the plaintiff, known as the defendant. In many medical malpractice cases, the defendants include the healthcare provider and the patient’s treatment facility.
Each case is different, and there is never a guarantee that a case will or will not settle out of court. But understanding the settlement process and why it may be advantageous for both parties can help you clarify your circumstances.
What Happens Before a Trial in a Medical Malpractice Case?
The malpractice claim process starts with a demand letter sent by your medical malpractice lawyer to the healthcare provider or hospital’s insurance company, stating the extent of your losses. Florida law requires the plaintiff to send the potential defendant a demand letter before filing a lawsuit.
Once the defendant and their self-insurer (the medical malpractice carrier) have been notified of the plaintiff’s intent to sue, they have 90 days from the date of the demand letter to investigate the claim’s validity.
After the 90 days, the defendant may:
- Make a settlement offer to your medical malpractice lawyer in the requested amount
- Offer to move to arbitration, wherein the defendant admits liability but wants to negotiate compensation
- Reject the demand letter
If the defendant or their insurance company rejects your claim, your attorney is legally permitted to file the lawsuit, and your case begins. The defendant may choose to settle the case before your lawyer even files your lawsuit, or they may settle in third-party arbitration.
Arbitration is binding, just like a court judgment. Mediation or arbitration often settles medical malpractice cases out of court.
Facts About Florida Medical Malpractice Cases
Medical malpractice cases can be among the most complicated to litigate. Lawyers must explain complicated medical terms to a jury who may be unfamiliar with many of the topics. The threshold of a reasonable standard of care is not absolute, either, and is often established with the testimony of other medical experts.
Finally, in some medical emergency situations, chaos could cause a simple mistake to happen. Although tragic for the victim and their loved ones, this situation may not have been an error that meets the standard for medical malpractice or negligence.
According to the Florida Department of Health (DOH), plaintiffs filed 1,727 medical malpractice claims in the state in a recent year. The DOH noted that 812 of these cases reached a resolution, either through a settlement or at trial. Of those 812 plaintiffs, only 306 of them received a compensatory award.
The median medical malpractice settlement in Florida, according to the National Practitioner Data Bank, was $210,000 in one recent year. So while the chances of a plaintiff winning their case or achieving a settlement may be under 20 percent, when a plaintiff with a strong case does win, they may receive a fairly high settlement award.
A Florida medical malpractice lawyer can determine whether you have a strong case to make for malpractice against the doctor or healthcare facility that harmed you.
Why Would the Other Party Choose to Settle a Medical Malpractice Case out of Court?
If your medical malpractice lawyer gathers enough evidence against the defendant during the discovery period of the trial, then the defendant may settle.
Discovery gives both parties the opportunity to:
- Subpoena medical records of the plaintiff or personnel records of the healthcare provider
- Depose any witnesses, including others who may have been present when the defendant committed malpractice
- Have the plaintiff examined for a second medical opinion
- Review any complaints about the healthcare facility
- Review the standards and practices required of healthcare facilities for their medical care providers
Sometimes, the healthcare facility may prefer to settle the case out of court and independently censure the doctor or caregiver. For example, suppose that a doctor performed surgery under the influence of drugs or alcohol and harmed a patient. In that case, the hospital may want to keep the case as quiet as possible and take care of disciplining or firing the doctor independently.
Alternatively, perhaps the healthcare facility has a consistent record of permitting unqualified or underqualified healthcare providers to perform medical treatment on patients. It likely wishes to preserve its reputation or keep its operating license, so it may choose to settle out of court rather than risk a trial and the public consequences such attention might bring.
A settlement may also involve the defendant admitting liability after conducting their investigation into the claim but not agreeing to the compensation the plaintiff requests. Settlement in these cases involves both parties agreeing on a fair dollar amount. some things to consider first when you suspect medical malpractice.
Why Would a Healthcare Provider Choose to Go to Trial Instead of Settling out of Court?
Not every medical malpractice case settles out of court. Malpractice cases are some of the most complex types of personal injury cases due to the high burden of evidence required. The plaintiff’s medical malpractice lawyer must prove that the doctor failed to provide the standard level of treatment.
Your attorney must examine how you were diagnosed, tested (or not tested for certain conditions), and treated to determine whether you did receive the correct standard of care. Authorities base the standard of care on how other healthcare providers with similar qualifications would have treated a patient presenting symptoms like yours.
Suppose the doctor or healthcare facility is fairly certain that you received the best care possible. In that case, they may go to trial to explain or attempt to exonerate themselves. The burden is on you as the plaintiff to prove that you received subpar care.
Your medical malpractice lawyer will often have expert witnesses, doctors, or other healthcare experts who would testify to how you should have been treated, how they would have treated you in a similar situation, and where the defendant failed to provide the standard care expected of them.
How Long Does a Medical Malpractice Case Take to Settle?
The lower the case value, the less time it usually takes to settle out of court. Cases in which the plaintiff was injured but is expected to make a full recovery would settle faster than a case with damages in the million-dollar range or cases where the victim is permanently disabled due to the malpractice they endured.
Although each is different, and therefore the length of time to settle will vary, these factors consistently affect how long a medical malpractice case takes to settle:
- Who the defendant is
- Whether the defendant’s attorney prefers to litigate or settle
- The value of the case
- How many witnesses each side needs to depose
- The extent of the records that either side needs to subpoena or other aspects that impact discovery
- Whether the plaintiff is requesting punitive damages
- How complicated the facts of the case are, or how much of the case is in dispute
In high-value cases above $1 million, it could take years to conclude a case. The insurance company for the defendant and the medical facility is not likely to hand over a multi-million dollar settlement without a thorough investigation or well-documented, concrete evidence that negligence seriously harmed the plaintiff.
What Can I Expect in a Medical Malpractice Case Settlement?
When your medical malpractice lawyer values your case, they consider:
- The cost you have already incurred for medical care
- Projected future costs for treatment of your new condition
- Whether you can live independently or require full-time nursing care
- The emotional trauma and mental distress of a misdiagnosis
- The pain and suffering of any unnecessary or invasive treatments you experienced
You deserve compensation for any medical bills that resulted in your injury and for medical treatments needed to fix the mistake.
For instance, you might start a proper treatment plan for your true disease instead of the misdiagnosed one or undergo a surgical procedure to correct damage from the malpractice.
Your attorney also considers any long-term care needs you have. For example, suppose that you need modifications to your home or vehicle because the malpractice left you unable to function or move independently. If you need a modified shower or wheelchair ramps, your claim can cover the costs of those items.
Plaintiffs are also entitled to seek compensation for non-economic damages. The pain from unnecessary medical treatments and the emotional distress or mental anguish of a misdiagnosis are examples of non-economic damages.
Some common types of medical malpractice For example, if doctors could have cured your true condition with early intervention, but you were misdiagnosed, you may get compensation for emotional distress. Finding out you have a serious illness and that your prognosis may not be as positive because you received delayed treatment can take a toll on your mental well-being.
What Happens if My Case Goes to Trial?
The only party that can make a settlement happen is the plaintiff. The defendant may make a counter-offer to your attorney’s demand letter or agree to mediation to come to a compromise outside of court. As the party bringing the lawsuit, you are the one to say yes to a settlement offer or decide to take your case to trial.
If a settlement offer from the defendant is insufficient to cover your losses, then your only recourse to get the full amount would be a trial. Your attorney will explain how the process will unfold, from who the witnesses will be and what they may say to whether you will have to testify and what the defendant’s lawyer will ask you.
Did Medical Misdiagnosis or Medical Malpractice Harm You?
If you or someone you love received a misdiagnosis of a disease that negatively impacted your health or were a victim of medical malpractice, you have rights. The healthcare provider, doctor, or hospital should be held accountable for their grievous mistakes and negligence.
A Florida medical malpractice lawyer can help you understand your eligibility to file a lawsuit to recover compensation for your medical bills and other losses. They can walk you through each step of the legal process. Contact our law firm in Florida you may have limited time to file a claim.