How Settlement Negotiations Work in a Medical Malpractice Case

December 18, 2022 | Attorney, Matthew Dolman
How Settlement Negotiations Work in a Medical Malpractice Case

Getting the Most Out of a Settlement in a Medical Malpractice Case

Medical malpractice is a more common occurrence in Florida than most people realize. Unfortunately, medical malpractice cases can also be difficult to win at trial—often leading to settlement negations.

The odds of a poor outcome at trial and the pressure of suing a powerful healthcare professional have led many medical malpractice victims to settle their cases out of court. With an experienced malpractice attorney who has the resources to investigate a case properly, injured patients can receive a fair settlement offer that justly compensates them for their losses.

If you or a loved one has been injured due to poor medical care, the Dolman Law Group Accident Injury Lawyers, PA can help you learn how settlement negotiations work in a medical malpractice case and protect your rights during your difficult path to recovery. Our experienced medical malpractice attorneys work hard for our clients to negotiate and litigate effectively to ensure our medical malpractice clients receive fair compensation for their losses.

What is Medical Malpractice?

Medical malpractice occurs when a healthcare provider makes an error during medical treatment that could have been avoided if they exercised proper caution. This negligence stems from deviating from the accepted standard of care healthcare providers owe patients and can result in harm and severe injuries. Not all medical errors constitute medical malpractice. You can tell the difference between a general medical error and medical malpractice by asking yourself one question. Could this error have been avoided if they met the standard of care? If the healthcare provider made an avoidable mistake that resulted in harm, you could file a medical malpractice claim to pursue a settlement for damages. The following are some examples of medical malpractice that you could pursue compensation for:
  • Misdiagnosis of an injury or illness
  • Leaving a foreign object inside a patient during surgery
  • Performing surgery on the wrong body part
  • Prescribing the wrong dosage of medicine
  • Failure to properly monitor the patient's condition after giving medical treatment

Florida Statute of Limitations for Medical Malpractice Cases

A statute of limitations is a law that dictates how long someone has to file a claim or lawsuit after suffering a personal injury. How long an injury victim has depends on the incident's location and the accident type. In Florida, medical malpractice victims have two years from the date of the accident to file a claim with the healthcare provider's insurance company. The time elapses from when the victim either discovered the injury or should have discovered the injury.

Starting Settlement Negotiations—Proving Negligence and Causation

Winning a medical malpractice case can be challenging. The Bureau of Justice Statistics examined 2005 medical malpractice cases brought to trial and found that the plaintiff prevailed in less than twenty-five percent of these trials. However, just because it's difficult does not mean an experienced and committed medical malpractice attorney cannot help process your claim correctly and put you in a position to receive fair compensation.

To receive compensation in a medical malpractice claim or lawsuit, you and your attorney must be able to prove that the healthcare professional was liable for medical malpractice and that they harmed you because they deviated from the standard of care.   v  Before determining the value of the patient's losses, they must first be able to prove two things:
  1. That the doctor was, in fact, negligent; and
  2. That the doctor's negligence caused the injuries and losses the patient suffered
These requirements may sound obvious, but the emphasis here is on the term prove. Knowing for a fact that something happened, and being able to prove it with evidence, are two very different things.

Proving Medical Malpractice Negligence

To prove negligence, the patient must present evidence that the doctor or health care provider failed to act with 'due care' in providing medical services. Establishing due care requires that the facts of the case be measured against a standard of care set by a hypothetical "reasonably prudent doctor" from the same field.

This means, "Did the doctor act in a way that any sensible doctor would?" Receiving compensation for a medical malpractice claim means proving that the healthcare provider owed you a standard of care, fell below that standard, and caused injuries or damages as a result. Proving this requires evidence of generally accepted medical practices specific to the geographical location and time frame in which the patient was injured. For example, a doctor cannot be negligent for failing to administer a treatment in 2019 which did not become a generally accepted medical practice until 2022.

Proving Causation in Medical Malpractice Claim

Your medical malpractice attorney must also collect evidence that proves the medical malpractice you suffered caused the injury or damages you are pursuing through your medical malpractice claim. Proving causation can be a more complicated issue than proving negligence.

First, there is the problem of the patient's underlying condition, which is why they were seeing a doctor or in the hospital in the first place. The healthcare professional can be responsible for any exacerbation or prolongation of that condition, but not the condition itself. However, the presence of the existing condition muddies the waters when needing to prove issues related to the medical condition. There is also the problem of contributing factors. For example, a doctor may be negligent in failing to diagnose a condition requiring surgery but cannot be responsible for the patient's bad reaction to anesthesia, unrelated to the misdiagnosis. When these contributing factors become powerful enough, another problem arises for the malpractice victim: superseding causation.

What is Superseding Causation in a Medical Malpractice Lawsuit?

Superseding causation occurs when these contributing factors cause the injuries, and the doctor's conduct is so far removed that the injuries would have occurred regardless of the doctor's negligence.

Going back to the surgery example, imagine that the doctor's failure to diagnose only delayed the surgery by an hour, which did not give the patient any different prognosis than they would have had an hour earlier. Meanwhile, the only injuries sustained by the patient were the underlying condition and the surgical anesthesia – neither of which was caused by the doctor's failure to diagnose. In this situation, the doctor would not face any legal liability for the injuries and have no legal obligation to compensate the patient.

Pure Comparative Negligence in Florida

In determining whether a doctor caused a patient's injuries, it is important to note that a doctor can be liable for part of a patient's injuries. Florida follows the law of "pure comparative negligence," by which each party is responsible for compensating that portion of injuries that they are responsible for causing.

For example, if your medical malpractice case goes to court, the jury may determine your injuries and damages were 20% because of an underlying condition and 80% because of a healthcare provider's negligence. In that case, the healthcare provider would only need to pay 80% of the damages. Thus, even if the underlying condition or other factors contributed to the patient's injuries, a negligent doctor can still be obligated to compensate only that portion of the injuries that were caused by their negligent treatment.

Negotiating the Value of a Medical Malpractice Claim

Once it has been determined that a doctor is liable for causing a patient's injuries—and what portion of the liability they are responsible for—the claim's value must be negotiated. Your medical malpractice attorney can look into the case to determine how the harm caused by medical malpractice affected your life. They can assess what damages you can pursue based on the economic fallout of the medical malpractice and how it can affect your daily life and future.

The value of a medical malpractice claim includes compensation for all losses sustained as a result of the negligent treatment, including:

Do Wrongful Deaths Caused by Medical Malpractice Change The Value of a Claim?

In the event of medical malpractice wrongful death, the patient's estate can be compensated for all wages the patient could be expected to earn had they lived. Surviving spouses and children may also have claims for loss of consortium after a wrongful death. This compensates the family members for the loss of companionship and protection that they would have had if their spouse or parent lived.

To receive compensation for wrongful death caused by medical malpractice, you and your attorney must be able to prove that your loved one would have lived if not for the medical malpractice. If the death was inevitable, you would be unable to recover compensation. If the healthcare provider caused the injury through negligent behavior considered medical malpractice, such as leaving a foreign object in the body or performing surgery on the wrong body part, you can pursue compensation for wrongful death.

How Do You Determine a Dollar Amount for a Medical Malpractice Case?

Many of these medical malpractice losses do not have a defined dollar value, making things tricky and harder to predict. How can one quantify the value of having lost a parent or spouse? What is the value of a leg or arm that was wrongly amputated?

Due to these values being so indefinite, the bulk of settlement negotiations often focuses on the hypothetical values of a patient's all-too-real losses. Sadly, the indefinite value of these losses has caused medical malpractice lawsuits to become the target of political opposition. For years, opponents have denigrated medical malpractice and other tort claims as inflated, costly, unnecessary, and resulting from greed. In June 2017, House Republicans even proposed a bill to set a federal cap on "non-economic" losses in every medical malpractice case in the United States. Aside from medical bills and lost earnings, this would mean that no plaintiff could be awarded more than $250,000 for non-economic damages. That amount would have to cover pain and suffering, the physical losses associated with amputation or paralysis, and the emotional losses associated with wrongful death.

Florida Medical Malpractice Non-Economic Damages Cap

Florida law currently has a cap on non-economic damages in a medical practice case. The cap ranges from $500,000 to 1 million dollars depending on the type of practitioner and the facts of the case. You could recover $1 million if the medical malpractice results in a loved one being in a permanent vegetative state or death. However, this law was ruled unconstitutional by the Florida Supreme Court in June 2017. In practice, there is currently no Florida cap on non-economic medical malpractice damages.

Medical Malpractice Settlement Amounts

The national average payout for a medical malpractice case is approximately $242,000, with the average in Florida being $271,949.69. Of course, this number can vary greatly depending on the facts of the case. This statistic raises the question: how is the settlement amount determined by a jury or two negotiating parties? The formula to determine how much a medical negligence case is worth is: Economic Damages (past & future) + Noneconomic Damages (past & future) = Value of Case Your medical malpractice lawyer can assess the damages that have a clear dollar value attached to them and those that affect your daily life to determine how much you can make from a medical malpractice claim. Due to pure comparative negligence, the value of your case can be affected by other factors contributing to your injuries, including underlying conditions and any actions you take to exacerbate your injuries.

Negotiating a Medical Malpractice Settlement With the At-Fault Party's Insurance Company

A medical malpractice attorney can help negotiate a settlement with the at-fault party's insurance provider. An insurance company's goal is to limit a settlement to keep its profits up. The last thing they want to do is pay out hundreds of thousands of dollars because of a mistake by a healthcare provider. They have the resources and insurance adjusters necessary to find information that can negatively affect your claim, Finding the right medical malpractice attorney with the resources and time necessary to negotiate the claim is vital to ensure an insurance company cannot get away with paying a low settlement. They can combat any tactics insurance adjusters use to reduce your settlement and collect evidence that can help prove your case.

Contact Dolman Law Group for Help With Your Medical Malpractice Claim

The medical malpractice attorneys at Dolman Law Group Accident Injury Lawyers, PA have decades of experience negotiating and litigating medical malpractice claims. We work hard to protect Florida residents from subpar medical care and to get them the compensation they deserve, outside or inside a courtroom.

Our medical malpractice attorneys constantly communicate with our clients to ensure their thoughts and concerns are addressed in their potential settlement. We offer personalized attention and ensure to work to get the best settlement possible, not just accept the first settlement offer the at-fault party's insurance company offers. Call (727) 451-6900 or fill out our contact form to schedule your free consultation with a personal injury attorney at our law firm today. Our experienced medical malpractice attorneys will ensure you receive full and fair compensation for your injuries and losses.
Dolman Law Group Accident Injury Lawyers, PA
800 North Belcher Road
Clearwater, FL 33765
(727) 451-6900


Matthew Dolman

Personal Injury Lawyer

This article was written and reviewed by Matthew Dolman. Matt has been a practicing civil trial, personal injury, products liability, and mass tort lawyer since 2004. He has successfully fought for more than 11,000 injured clients and acted as lead counsel in more than 1,000 lawsuits. Always on the cutting edge of personal injury law, Matt is actively engaged in complex legal matters, including Suboxone, AFFF, and Ozempic lawsuits.  Matt is a lifetime member of the Million Dollar Advocates Forum and Multi-Million Dollar Advocates Forum for resolving individual cases in excess of $1 million and $2 million, respectively. He has also been selected by his colleagues as a Florida Superlawyer and as a member of Florida’s Legal Elite on multiple occasions. Further, Matt has been quoted in the media numerous times and is a sought-after speaker on a variety of legal issues and topics.

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