Medical Malpractice Lawyers :Critical Variables Influencing The Litigation Process

2007-03-08 10:33:40

( Legal )



This study was based on insurance company files, which give accurate information about malpractice litigation.

They include important:
Documentation -
- Medical records.
- Reviews by experts and physicians
- Etc.

Information -
- Settlement costs.
- Defense costs.
- Jury verdict.

Provide honest opinions by supervisors, claims adjusters and the defense counsel.

The files revealed that:
- When liability was probable because of negligence, most cases settled
- But importantly, when liability was uncertain or unlikely, other strategic variables had a significant influence on the outcome.


The litigation process functions predictably, in that poor standard of care and severity of injury were the only significant factors in compensation amounts.

However, there are also inconsistencies - with meritorious claims not being paid and the contrary.

This is especially evident in cases of uncertain liability, where factors other than negligence affect the outcome of the case. These are non-rational factors because the outcome is based on jury perception, which is vital in the litigation process.

They are important for medical malpractice lawyers to understand, because it is usually the cases in which liability is uncertain that go to trial.

Based on the opinion sought by insurers from outside physicians about the likely liability of the case, there were some predictable outcomes.
Liability:
- Probable
- Uncertain
- Unlikely

Similarly, the insurer’s opinion was used regarding:
The witness potential of –
- The plaintiff
- The defendant physician

- The competence of the plaintiff’s medical malpractice lawyers.

The competence of the medical malpractice lawyers was judged as being:
- Below average.
- Average.
- Above average.

Two variables identified the advantage of the defendant physician or the plaintiff:

Plaintiff’s Advantage:
- Plaintiff excellent witness.
- Defendant Physician poor witness.
- Plaintiff’s medical malpractice lawyer excellent.

Defendant’s Advantage:
- Plaintiff poor witness.
- Defendant physician excellent witness.
- Plaintiff’s attorney poor.

Extreme parameters were used in order to identify a clear advantage.

The various variables were measured according to how often settlement was made.

Medical malpractice suits usually have three possible outcomes:
- Plaintiff doesn’t claim
- Verdict after a trial.
- Consensual settlement.

More than half the claims result in settlement and don’t go to trial – usually in cases where liability is likely.

When liability is uncertain or unlikely?

The insurer will:
- Settle: defendant most likely to lose.

The defendant might be likely to lose because of negligence. But if liability is not certain, the insurer will use the variables outlined. IE: The defendant is likely to lose if:
- Plaintiff sympathetic
- Defendant unattractive
- Plaintiff’s attorney effective.

And the contrary is also true.

In the cases studied:

- Probable liability with an advantaged defendant and a disadvantaged plaintiff – cases settled. Liability uncertain or unlikely – cases didn’t settle

- Defendant physician and plaintiff both disadvantaged – settlement in half of the cases and those were the cases where liability was probable. Half of the cases with uncertain liability settled


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