Negotiating a Medical Malpractice Settlement

Settling a medical malpractice claim can be a complicated matter. In the end, however, a plaintiff stands to recover more money when duly represented by a seasoned attorney. Although some cases do go to court, most medical malpractice claims are negotiated and settled between the parties. Many insurers opt for out-of-court negotiations because they do not want to chance a large jury settlement. This provides leverage for the claimant to receive just restitution despite an insurer's low-balling attempt.

Types of Damage Awards

When negotiating a medical malpractice settlement, an attorney will seek two types of damages: actual damages and, in the case where the malpractice was particularly egregious, punitive damages. However, punitive damages are rarely part of a settlement agreement and are usually awarded as part of a trial determination.

Actual Damages

Actual damages are quantified based on a number of economic factors including lost income, medical costs, out-of-pocket expenses, or any lost profits arising from the injury. In addition to economic losses, actual damages may cover non-economic compensation that includes pain and suffering. In some cases, a plaintiff's spouse may recover for loss of consortium. Loss of consortium can include diminished capacity to help around the house, care for the children, or provide sexual companionship and affection.

Punitive Damages

Whereas actual damages are awarded to put the harmed patient "right" again, punitive damages are awarded to punish the a willfully negligent doctor. Punitive damages are given out less often, but when warranted, they provide a disincentive to practice in a wanton or malicious manner.

How are Damages Calculated?

Actual economic damages are easier to calculate than non-economic damages. For economic damages, parties and courts look at medical bills, W2's, the terms of any presiding insurance policy, as well as costs for certain rehabilitative therapies to determine past, present and possible future costs. Non-economic damages are based on less concrete factors, some of which are more subjective.

In evaluating pain and suffering, courts look at the following factors:

• The extent and severity of the injury
• Whether the injury has adversely affected the patient's capacity to perform day-to-day activities
• How the injury has diminished the patient's quality of life
• The length of the time it takes the patient to recover
• Whether the patient has suffered emotional trauma or depression
• The residual effects of the injury

Calculating punitive damages is subject to limitations set by the Fourteenth Amendment. Some courts have determined that punitive damages should be reasonably proportional to the actual damages. Also, some states have placed a cap on the amount of punitive damages that can be awarded.

Find an Attorney

Negotiating a medical malpractice settlement requires a legal expertise that laypeople often do not have. An attorney experienced with medical malpractice suits will know what factors must go into calculating actual damages, and in some cases, punitive damages. Also, an attorney provides much needed leverage when dealing with insurers who often seek to lowball a claimant. If you have been harmed because of medical malpractice, find an experienced attorney to determine your full compensation and protect your rights in this case.