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How Settlement Negotiations Work in a Medical Malpractice Case

Medical Malpractice Attorneys in Florida

Medical malpractice affects many Floridians. The effects of medical malpractice can be devastating – particularly for the family members of patients who die as a result of poor medical care. Unfortunately, medical malpractice is also a difficult case to win at trial. 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. The odds of a poor outcome at trial lead many medical malpractice victims to settle their case outside of litigation. With an experienced, aggressive medical malpractice attorney, injured patients can receive a fair settlement offer which justly compensated them for their losses.

If you or a loved one has been injured as a result of poor medical care, the Dolman Law Group can protect your rights during the difficult path to recovery. Our experienced medical malpractice attorneys fight hard for our clients to ensure they are fairly compensated for their losses. Our attorneys negotiate effectively and litigate aggressively when needed.

Starting Settlement Negotiations

Before determining the value of the patient’s losses, he or she must first prove:

  • That the doctor was, in fact, negligent; and
  • That the doctor’s negligence caused the injuries and losses the patient has suffered.

In order to prove negligence, the patient must present evidence that the doctor failed to act with due care in providing medical services. This is measured against a standard of the hypothetical “reasonably prudent doctor”. This often 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 2005 which did not become a generally accepted medical practice until 2008.)

Causation can be a more complicated issue. First, there is the problem of the patient’s underlying condition, which was not caused by the negligent doctor. The doctor can be responsible for any exacerbation or prolongation of that condition, but not the condition itself. There is also the problem of contributing factors. (For example, a doctor may be negligent in failing to diagnose a condition which requires surgery but cannot be responsible for the patient’s bad reaction to anesthesia, which was unrelated to the misdiagnosis.) When these contributing factors become powerful enough, another problem arises for the plaintiff.

“Superseding causation” occurs when these contributing factors actually 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 that he or she 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 responsibility (“liability”) for the injuries and have no legal obligation to compensate the patient.

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 which he or she is responsible for causing. (See Florida Statutes §768.81.) Thus, even if the underlying condition or other factors contributed to the patient’s injuries, a negligent doctor can still be obligated to compensate that portion of the injuries which were caused by his or her 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 he or she bears), the value of claim must be negotiated. The value of a medical malpractice claim includes compensation for all losses sustained as a result of the negligent treatment, including:

  • Exacerbated pain and suffering beyond that of the original condition
  • Lost wages (again, for the time missed from work as the result of the doctor’s negligence, not the underlying condition)
  • Decreased future earning potential as the result of permanent injuries

In the event of a wrongful death, the patient’s estate can be compensated for all wages the patient could be expected to earn had he or she lived

Surviving spouses and children may also have claims for loss of consortium after a wrongful death. This compensates the family members for their loss of companionship and protection from the patient.

Clearly, many of these losses do not have a defined dollar value. How can one quantify the value of having a parent or spouse? What is the value of a leg or other limb that was wrongly amputated? Because these values are 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 the result of 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. This would mean that – aside from medical bills and lost income – no plaintiff could be awarded more than $250,000. That amount would have to cover pain and suffering, the physical losses associated with amputation or paralysis, and the emotional losses associated with a wrongful death. While it is far from certain that this bill will pass, it is nonetheless concerning that every case could be assigned a definite value by remote politicians, without any consideration for the facts of an individual case.

Experienced Representation for your Medical Malpractice Claim

The medical malpractice attorneys at the Dolman Law Group have decades of experience in negotiating and litigating medical malpractice claims. They fight hard to protect Clearwater residents from subpar medical care. Call (727) 451-6900 to schedule your free consultation with a personal injury attorney today. Our experienced, aggressive attorneys will make sure you receive full and fair compensation for your injuries and losses.