What percentage of medical malpractice cases settle vs go to trial?

[yago]

I'm now in the expert phase of my medical malpractice case. Do you think it will end soon? I hope it will settle so I can have money to have my surgeries/procedures I need. What if it goes to trial??? I don't want to wait that long.What are signs that they are going to offer a good settlement?

[aescby]

From the day I hired my current lawyer to the day we finished up at arbitration was nearly four years. We did our depos two years ago, and all the experts were deposed a few weeks before trial. My case was in CA.

Defense counsel had asked for two different demand letters; what do we want to settle? In the end, it was defense counsel's decision NOT to settle, not the doctors'. Three days before trial, defense counsel refused to settle, and we wound up going to trial (arbitration).

All through trial, the insurance company's bean counter was there listening to the testimony. Even after the doctors admitted what they had done, the bean counter, nor defense counsel, wanted to settle. We won. And we won more than what we would have settled for.

Now I disagree with the first answerer. Doctors do not tyically get a say in whether something settles or not; i.e., it is the doctor's insurance carrier who decides, along with defense counsel, whether to go forward or to settle. Also, many doctors are dropped from lawsuits, having been named because their name appears on a medical record, but as the depositions go forward, it is found that said doctor did nothing more than pass through on rounds and had no direct hand in your care, and they are nonsuited. Another reason for doctors and/or their insureds not to settle.

Defense counsel may well see that you've got a very strong case and tell the insurance company to cut their losses by settling, but the insurance company may decide to roll the dice. It's a 50/50 shot if you will win, and those are pretty good odds for the defense.

A good settlement? A good settlement would be one where your lawyers are paid and you have enough left over to take care of your medical needs. And with settlements, they usually settle -- not always, but usually -- for much less than you need to take care of yourself, defense counsel regularly arguing that that's why Medicaid is there. Taxpayers will pick up what we do not. This was an argument that was made repeatedly at our arbitration.

Furthermore, lots of states have caps on damages, a cap on what you can receive. Louisana, for example, has a cap of $500,000 only. The economist and docs say you need $10 million to cover your losses? Too bad. $500k is the max. This is not how it is in every state, but in a lot of them.

I also disagree that you will be labeled "Malpractice Mary." My child has had no problem getting medical care from a plethora of doctors and experts, and neither do I. As I said, my case went on for four years. Who knew about it? Just me and my baby, my attorney, and the doctors we were suing. Her treating physicians figured it out, but they did not drop her from care, and they certainly never discussed their thoughts on her suit with me.

And if you settle, the circumstances of your suit and settlement will be confidential, and you will be made to sign an agreement stating that you will never talk about it again. Most people will never even hear about it, unless you tell them. And if you settle, you will be barred from telling them anyway, so the fear of not getting a doctor to treat you is not really anything you should worry about. Besides, you have doctors now, right?

If you go to trial, something you should welcome, it will be the only chance you have to tell your story. It will be the only place you get real answers on why what happened, happened. Your lawyer will put on his case in chief, inclusive of your testimony, and he will get to question the doctors who made the mistake. Defense counsel will also get a chance to question you, and your attorneys will get an opportunity to question the docs. It is nerve-wracking, but the two-week arbitration I attended was far less stressful than the last four years of preparing for it.

I personally would not push for settlement. And your attorney has probably told you, the more desperate you sound, the less likely they'll settle, and the less likely you'll get as an award if you settle, because they know you're desperate, which means they can buy you off cheap.

For me and my family, actually having to go to trial was nerve-wracking and hard. But in the end, it was far better for us, for our child, and we got all the answers that we had sought for so many years. Do not be afraid of going to trial. The truth does not fear investigation.

Good luck. Write me privately, if you'd like. I'm actually interested in hearing about your case. I read a lot of med/mal depos given by docs and experts, so I know a lot about the med/mal thing anyway, even without my own experience.

Really, good luck.

[jen]

I've seen lots of cases where medical malpractice SHOULD have been filed and was not. Operations on the wrong side of the body, for one, and yes doctors prefer to settle out of court. If your lawyer phones with "good news," it's usually worth taking the time to listen to what he has to say.

Not every state awards damages unless the case is extreme and the doctor negligent. You do not wish to be nicknamed "Malpractice Mary" or few doctors will be willing to take you on as a patient. You should always get second opinions when it comes to recommendations for surgery. Surgery should always be the case of last resort and since you did not mention the reason for your surgeries or procedures that you "need," it would be difficult, if not impossible, to give the right advice unless you are 100% honest and upfront and can give evidence (preferably in writing) that a physician acted in a negligent manner AND have the right attorney.