Medical malpractice claims, which allege that medical providers failed to comply with the standard of care expected of reasonably competent similar medical providers under the same or similar circumstances, range from catastrophic birth injuries that will require expensive 24/7 medical care for life and involve life-long disabilities, to claims where the harm suffered was limited both in scope of the injury and the length of time that the patient suffered from the harm.

Caps (Limits) On Medical Malpractice Damages

The recovery of damages that a victim of medical malpractice may be entitled to under the medical malpractice laws of their state may include both economic damages, such as lost wages and medical expenses, and noneconomic damages, such as pain and suffering, mental anguish, and disfigurement. Some states have a cap (limit) on the amount of economic damges that a negligent medical provider may be responsible for, and many states have caps on noneconomic damages, no matter how badly the person was injured (caps on noneconomic damages affect the most egregiously injured medical malpractice victims the most because those victims will not receive full compensation or full justice for the harm suffered as a result of medical malpractice).

Caps (limits) on medical malpractice damages also affect the settlement value of medical malpractice claims because it is highly unlikely that the negligent medical provider (or their medical malpractice insurance carrier) will pay more than the amount of the cap, and it is also likely that the insurance company will offer less than the cap to settle the claim because they know that they will not be responsible to pay more than the cap and that the substantial expenses the medical malpractice victim will incur to proceed to trial acts as an incentive for the malpractice victim to settle for less than the cap.

Nonetheless, medical malpractice lawyers need to attempt to evaluate their client’s claim based on a range of settlement values. A critical consideration in determining a settlement value of a medical malpractice claim is the relative strengths and weaknesses of the claims and the defenses. For instance, if a surgeon negligently amputated the patient’s wrong leg, the liability of the surgeon is likely very strong and the harm suffered is likely very great.

Another important consideration is the venue (place) where the medical malpractice trial would take place. If the trial would take place in a geographic area that is “conservative” or rural, or where the prospective jurors may be low-wage earners, the medical malpractice lawyers may place the settlement value near the lower limit of the settlement value.

Other important considerations include how a jury may view the claimant, how effective a claimant is expected to be as a witness during trial, and especially how relatable and likeable the claimant will appear to the jurors. On the other side of the coin is how effective the defendant medical provider will be at trial, their likeability, and the extent to which the defendant appears remorseful or combative when testifying during trial. These intangibles may be hard to judge and properly evaluate before trial – sometimes a defendant medical provider may come off as unlikeable and defensive during their deposition but when they testify at trial, all of a sudden they try to ingratiate themselves with the jurors (which may or may not be effective).

Another important consideration is the anticipated effectiveness of the parties’ respective expert witnesses during trial testimony.

One manner in which medical malpractice lawyers may attempt to determine a value range for settlement purposes is by researching the reported settlement amounts or jury verdict amounts of similar medical malpractice cases in their local jurisdiction or in similar jurisdictions throughout the United States. However, no two cases are alike and just because a similar medical malpractice case settled for a certain amount or a jury returned its verdict in a certain amount does not mean that the claim the medical malpractice lawyer is attempting to value will have a similar result.

Focus Groups

Perhaps the most effective means of determining a settlement value that may be appropriate is through the use of what are called focus groups, in which lawyers arrange for a group of people who have characteristics similar to the expected jury pool to assemble and be presented with the anticipated facts, claims, and defenses that the actual jury may hear during trial, and then deliberate just like a real jury so that they may place a monetary value on the case. Focus groups are also very helpful in determining the strengths and weaknesses of the claimant’s case and the defenses so that the presentation of evidence during trial can be determined accordingly.

Some medical malpractice lawyers may argue that it would be legal malpractice not to use one or more focus groups in preparing their medical malpractice cases. There are many ways to assemble focus groups and many ways to present the issues to the focus groups. Many lawyers hire outside experts who arrange for the focus groups and supervise the focus groups as they function so that the lawyer’s preconceived attitudes and conclusions do not harm the effectiveness of the focus group – as they say, garbage in, garbage out.

As you will glean from the above, there are so many variables in determining the value of a medical malpractice claim, many of which may not be in the control of your medical malpractice lawyer. Nonetheless, it is often necessary to evaluate the settlement value of a medical malpractice claim unless the defense indicates that it will not be presenting a settlement offer and your medical malpractice claim will need to be determined by a jury.

If you or a loved one were injured (or worse) as a result of medical malpractice in the United States, you should promptly find a medical malpractice lawyer in your state who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.

Visit our website or call us on our toll-free number in the United States (800-295-3959) to find medical malpractice attorneys in your state who may help you.

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