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The Three Biggest Myths about Medical Malpractice

(And three SURPRISING FACTS that no other malpractice lawyer will tell you)

Medical malpractice gets a bad rap. Yeah, I know, the limits on legal fees under New York’s “sliding scale” stink and yes, pre-lawsuit settlements are rare.  But let’s cut through the myths about medical malpractice law and explore the reasons that perhaps you shouldn’t just pack up your briefcase and give up on medical malpractice law just yet.

Myth #1The defense will refuse to settle malpractice cases, even the cases involving clear malpractice

Wrong!  This is just not true.

A common misperception is that the defense will take every case to verdict.  If your case has merit, it will be settled (as long as you don’t have an outrageous or unreasonable value for the case).  Good cases settle.

Now, it won’t be easy for you. The case will work its way through discovery and up to the day of the trial with no sign of a settlement.  There is virtually no such thing as a pre-suit settlement and settlement before trial are not the norm. You may need to pick a jury and begin the plaintiff’s case before the defense even mentions a settlement.

But keep in mind one thing, the malpractice carrier and their lawyers are testing you.  They want to make sure you’ve got the chutzpah to go to verdict.  But if you prove you’re ready for a verdict and your expert and lay witnesses are lined up, the defense carrier will come to you eventually to settle your case.

Myth #2: You can never win a malpractice case in conservative counties

In conservative rural counties, the court personnel tell me stories about the landslide of defense verdicts in their county in medical malpractice cases. The court clerk usually takes me to a back hallway and whispers, “Do you know that we have had seventeen consecutive defense verdicts in malpractice cases?” Damn, I suppose I should file the stipulation of discontinuance now.

No need to fret, my friend. If you have a great case, you will win your malpractice case regardless of the conservative, rural venue (and, yes, I don’t care if the rural county has had twenty-seven consecutive defense verdicts).

During settlement negotiations, the insurance adjuster may point out that the case is in a conservative venue.  But that has never stopped the insurance carrier from settling the case for the same money that you would get in a more plaintiff-friendly venue.

There have been twenty-seven consecutive defense verdicts in some counties because the cases that go to verdict are weak and never should have been sued in the first place.  Yes, there are plaintiff’s attorneys who dabble in malpractice cases by bringing cases with marginal liability and they get burned in the end.

Weak cases go to verdict, stronger cases get settled. It’s that simple.

Myth #3:  Doctors refuse to give their consent to settlements

Au contraire, my friend.

The professional liability insurance policies require that the physician give his consent to a settlement.  At pre-trial conferences, the defense lawyer will say, “no consent”.  This means the defendant physician is unwilling to give his consent to settle, even when his lawyer wants to settle.

I will let you in on a little secret: It is almost never a problem to get a doctor to consent to a malpractice settlement (despite what others may tell you). Let’s say the malpractice insurer wants to settle, but the defendant doctor refuses. It is rare that a doctor will ever admit that he made a mistake.  Almost all physicians have been told from the day they entered first grade that they can “do no wrong” and they are smarter and better than just about everyone (especially the brain-dead lawyers).

But if your case is strong, the insurance adjuster will have a sit-down conversation with the defendant doctor.  The insurance adjuster will explain to the doctor: “Doctor, you have the right to refuse to consent to settle. However, this case has been reviewed by our in-house physicians and they believe the case has merit. If you refuse to settle and you lose the case, our insurance company will not insure you next year.”  This usually puts an end to the doctor’s stubborn refusal to settle.

But that’s not the only reason.  Doctors don’t want to spend two weeks in a courtroom at a trial and they sure don’t want to lose their homes and fancy cars to a verdict that exceeds their insurance coverage.  The doctors usually relent by giving their consent to settle.

Three Surprising Facts about Medical Malpractice

Now they we’ve dispelled the three most common myths of medical malpractice law, let’s take a look at three facts that will surprise you.

Fact #1:  Doctors will not settle based only on a huge injury

Your client has massive injuries with brain damage and paralysis. You represent an 8-year old infant with profound physical and mental disabilities who faces a lifetime of 24-hour round-the-clock nursing care just to survive. The economic and non-economic damages are enormous and the jury appeal of having a cute 8-year old in a wheelchair in a courtroom will garner every ounce of sympathy the jury has.

But here’s the problem: liability is iffy.  Your highly-paid medical experts tell you that there are arguments that can be made that the defendant deviated from the standard of care, but liability is marginal and the outcome of the case is impossible to predict.

Run for the hills when you hear those words!

You don’t listen to the medical experts because you have big dollar signs in your eyes.  You see your case with rose-colored lenses.  Surely, the defense will settle your case in view of your client’s huge damages and you’re dreaming of a huge payday. Heck, the Life Care Plan estimates future medical expenses over $20 million. You manage to convince yourself that the defendant and their insurer will not take this case to trial—the chance of a huge plaintiff’s verdict is just too risky.

Guess again, my friend.

Hospitals, doctors and their insurers do not settle marginal cases simply because your client has a massive injury. If you don’t have a good case, it’s real simple: you won’t get paid. But it gets worse: the expenses of litigating a catastrophic are substantial and may cost $40,000 to $80,000 just to get the case to trial. This doesn’t include trial costs which usually double the disbursements.

My advice: Throw the rose-colored lenses in the garbage and view your new cases with the critical eye of movie critic, Robert Ebert.  You want to analyze the good and the bad of the case before you file the lawsuit.

Fact #2:  Doctors will rarely fight proximate cause in cancer cases

Let’s say you’ve got a clear deviation from the standard of care.  An x-ray shows that your client had an abnormal mass in her lung that was not biopsied or tested for cancer.  Your medical expert confirms that there is a clear-cut deviation from the standard of care in failing to biopsy the suspicious mass.  One year later, your client is diagnosed with metastatic lung cancer and dies months later.

With a clear deviation from the standard of care, you’re thinking the case has merit and you get the pleadings ready.  Hold on a second!  A clear deviation from the standard of care gets you past the first element of proof (negligence), but you can’t forget proximate cause, namely, was the deviation from the standard of care a substantial factor in causing harm to your client?

In cases alleging a delay in the diagnosis of cancer, the plaintiff’s burden of proof is to show that the deviation from the standard of care diminished the plaintiff’s likelihood of survival.  There is no need to quantify the degree to which the plaintiff’s likelihood of survival was reduced, i.e., 5% or 10%.  As long as you can prove that the plaintiff’s likelihood of survival was diminished by the delay in the diagnosis of the cancer, you’ve met the burden of proof on proximate cause.

Malpractice insurance companies will almost never fight you on proximate cause in cases alleging a delay in the diagnosis of cancer.  The burden of proof is rarely difficult to prove for plaintiffs.

Fact #3:  Insurance companies are not run by bad people

What? Come again?  That’s right, the malpractice companies in New York are run by good people who generally do the right thing.

Most plaintiffs’ lawyers label insurance adjusters with sinister labels (and in some cases they are well-deserved). But not so with Medical Liability Mutual Insurance Company, which insures more than 90% of physicians in New York.  If your case has merit, there is a 90% chance that the insurance adjusters will agree and settle your case.

But be honest, if your case has holes or causation is questionable, fess us with the insurance adjuster.  The adjuster will appreciate your honesty (they are sick of the tired hyperbole of most plaintiffs’ lawyers) and believe it or not, they will likely acknowledge that their defense has problems too.

Get the Facts Straight about Medical Malpractice

You can win a malpractice case in Hamilton County, New York (where there are more bears than people) as long as you have a good case.  Don’t buy the myth that all malpractice cases go to verdict or that there have been a string of twenty-seven consecutive defense verdicts in your venue (that’s because the cases stunk!). Good malpractice cases settle 98% of the time.

But if your case is iffy on liability, let it go.  It will be better for someone else to take the defense verdict after spending $50,000 in disbursements. I know it’s not easy turning away a profoundly disabled client with brain damage and paralysis, but in the long run, you’ll be glad you did. It doesn’t pay to accept marginal cases.

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