Medical malpractice occurs when a clinical medical practitioner, usually a physician, commits an act of medical negligence that results in patient harm. Victims of medical malpractice and their families may feel lost in the wake of their injuries but there are a number of options available to them. Make a medical malpractice claim with the help of an experienced medical malpractice lawyer to pursue the monetary compensation you are owed. Medical malpractice cases are complex, and success in the form of compensation for your injuries isn’t guaranteed. But for many, making a claim may help a victim begin to rebuild their life.
The parties involved in a medical malpractice case may decide to pause or avoid a trial in favour of a medical malpractice settlement. A lawyer can help you determine the path of most likely success when seeking medical malpractice damages; a settlement may be among those options.
What is a Medical Malpractice Settlement?
Medical malpractice settlements are agreements between plaintiffs (injured patients) and defendants (the offending medical practitioner). After a period of legal negotiations lasting anywhere from weeks to years, terms can be reached whereby the plaintiff agrees to drop a medical malpractice claim, usually in return for compensation.
There are many reasons an injured patient may choose to enter a settlement negotiation as an alternative to proceeding with a trial. Settlement negotiations are typically initiated when the opposing parties agree that the time, expense, and uncertainty of a trial make it too big of a risk. Parties can enter into settlement negotiations at any point in the legal process.
1. Consult with a Lawyer
The circumstances and decisions that comprise a medical malpractice case and whether to pursue a trial or enter into settlement negotiations depend on the facts of each individual case. You should always seek legal help from an experienced medical negligence professional before moving forward.
2. Establish Elements of Negligence
Negligence is a legal term encompassing a variety of actions that lead to harm when an established duty of care isn’t fulfilled. Medical malpractice is a form of medical negligence committed by a trained professional such as a doctor. Medical malpractice occurs when a clinical health practitioner commits negligence due to their failure to meet basic standards of care and professional conduct. Claimants are also free to make medical malpractice claims against healthcare institutions such as hospitals, in the same way they would against a doctor or nurse. Medical malpractice plaintiffs can also allege negligence by entire healthcare systems or hospitals.
Establishing negligence in a medical malpractice case can be complex. Generally, your lawyer will argue that a medical mistake occurred, it caused significant harm and a physician acting responsibly would have likely avoided the same mistake.
Proving Injury or Harm
During a settlement hearing, your lawyer will argue that you were hurt or harmed during the course of medical treatment, so that constitutes medical malpractice. This can be especially complex when the injury isn’t obvious. The defendant’s lawyers may also acknowledge that a mistake was made by their client but that it caused no direct harm, or that unique, mitigating circumstances absolve the physician of responsibility for their mistake.
Some patients may also have psychological symptoms in addition to a physical injury as a result of substandard medical care but these can be difficult to measure and prove. In other cases, it may not be an acute, traumatic injury at the center of a malpractice case. Instead, the patient may have been denied a higher quality of life or the opportunity to recover from an injury or illness due to medical mistakes such as delayed or missed diagnoses, or prescribing incorrect medication.
Proving a Medical Mistake
The next step to evaluating whether you are due compensation for your medical malpractice claim could be establishing that a mistake was made by a medical practitioner.
Common mistakes that may form the basis of your claim include:
- Prescribing incorrect medication
- An infection related to medical treatment or a hospital-based illness
- Surgical errors
- Delayed diagnosis
- Failure to receive informed consent
- Failure to follow up
While not a complete list, many medical malpractice injuries result from one of these mistakes. Keep in mind a mistake alone is not enough to prove negligence. Doctors misdiagnose illnesses every day. Like all of us, doctors make mistakes. Courts will examine what a similarly trained physician would have done in comparable cases to determine whether care was substandard and harm was avoidable.
In a medical malpractice claim, proving negligence requires showing that physician error must have caused or directly resulted in patient harm. This usually involves evidence from medical expert testimony or medical records. It can involve complex medical and legal arguments that establish a link between the physician’s actions and the negative outcome experienced by the patient.
Top causes of physician error include fatigue, miscommunication, carelessness, misconduct, or poor judgment that contributed to a doctor’s error. Experienced medical malpractice lawyers will look for one or more factors when determining what contributed to a medical error.
3. Determining Whether You’re Owed Compensation
When deciding to pursue a settlement, your lawyer will attempt to identify whether your malpractice claims could result in compensation. They will consider what’s stated in BC law, the egregiousness of the medical errors made, the availability and quality of the evidence, and how likely the patient is to recover from their injuries.
A lawyer deciding whether to advise a patient to pursue legal action or a settlement is likely to look at both the economic and non-economic damages experienced. Compensation for medical negligence cases is based on more than the severity of the injury. Victims are generally owed compensation for both the physical anguish they experience and income lost while unable to work.
4. The Negotiation Stage
It is highly difficult to predict how long the settlement negotiation process may take and whether that settlement negotiation is likely to be successful. However, your lawyer may advise you that it could take a significant amount of time before settlement negotiations are complete. The potential speed with which a victim could receive compensation could be faster than proceeding to trial. This is one reason why plaintiffs may choose to accept a defendant’s, or their insurance company’s, offer to enter settlement negotiations.
Just like in court, a medical malpractice settlement negotiation may consist of witness testimony, evidence based on medical records and other documentation of negligence, expert medical testimony, and victim statements.
5. Calculating Damages
If the doctor’s medical malpractice insurer feels that the case against the offending doctor is too strong, they are likely to engage your lawyers on the key issue of the compensation. There are several common types of damages in medical malpractice cases.
General damages: Also called non-pecuniary, general damages consist of awards for intangible impacts on the patient’s life. They include mental anguish, loss of enjoyment of life, and emotional distress.
Income loss: Income loss is a category of compensation that awards a patient for the financial losses they experience while unable to perform their job. In a settlement, medical malpractice insurance companies may offer to cover all or some of the total lost income.
Loss of earning capacity: Lost earning capacity can refer to an inability to pursue sources of income as a result of an injury. For instance, someone with their own business may receive damages based on prospective revenue if their injury prevents them from running their business.
Medical expenses: Not all medical care is covered by insurance. During settlement negotiations, your lawyer may argue that your condition warrants care that is not covered by insurance.
Aggravated damages: Aggravated damages in a medical malpractice case are additional compensation awarded to the plaintiff to account for the increased harm, distress, or humiliation caused by the defendant’s egregious or malicious conduct during the malpractice incident.
Punitive damages: These are damages awarded to the plaintiff on top of compensatory damages to punish the defendant and prevent similar incidents from reoccurring.
6. Determining Award Structure for Damages
In successful medical malpractice settlements, patients can negotiate to receive their award in one of two main ways. You can negotiate to receive a:
One-time, lump sum payment: This payment schedule consists of receiving the total amount in a single, upfront payment, providing immediate access to the entire settlement amount.
Structured settlement: The payment schedule involves seeing payments distributed over a defined period and occurring at regular intervals. Patients can request funds dispersed weekly, monthly, or annually. Payments take place over an agreed upon length of time which could include the patient’s remaining lifetime.
7. Sign a Release
In exchange for the agreed upon settlement amount, the injured party is usually required to sign a release of liability, dropping or forgoing the medical malpractice case at hand as well as any future legal action based on the medical malpractice incident.