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Settlements and medical malpractice litigation strategy

When a medical malpractice lawsuit naming a medical practitioner as a defendant is resolved by a payout, the data is generally reported to the National Practitioner Data Bank. According to that data, about 96 percent of payouts in medical malpractice lawsuits in 2013 were made pursuant to settlement agreements.

Readers of this blog may have questions about whether any conclusions can be drawn from that statistic. As a preliminary matter, it should be noted that most lawsuits are resolved by settlement, rather than by a trial verdict. Yet a recent article provides additional insight.

Specifically, most doctors have medical malpractice insurance. That means that any payouts do not come from them personally, but rather their insurance company. That could make doctors more open to the idea of a settlement. In addition, the article suggests that insurance companies may be wary of insisting on proceeding to trial when a doctor is open to settlement. If the case were to receive a prejudicial verdict, the doctor might have a legal claim against his or her insurer on the ground of bad faith.

From the perspective of patient rights, this data is good news. Although the medical terminology involved in a medical malpractice suit may seem intimidating, an attorney who focuses on physician negligence may know experts that can interpret the evidence and testify whether the physician provided treatment that conformed to the acceptable standard of care of similarly doctors. An attorney can also judge the litigation hazards of a case, and provide advice whether a settlement payout might be a likely outcome.

Source: Forbes, "The Puzzle of Medical Malpractice Payouts," Michael Krauss, March 27, 2014

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