Every law firm has a very specific and well defined policy concerning medical malpractice claims. Medical malpractice claims are very difficult claims to fight legally. For this reason, a law firm initially accepts these claims on a tentative manner.
It takes time to gather the necessary medical records, to study and analyze the said records, to consult with respected medical experts, to gather additional pertinent data, and to reflect upon the likelihood of success. Medical malpractice claims can be extremely time consuming, very expensive to represent legally, and highly problematical in reference to the chance of success.
Florida medical malpractice lawyers, reserve the right to notify you that, in his/her opinion, your prospective medical malpractice claim does not justify pursuit by the lawyer’s office.
Having come to this conclusion, the law firm expressly reserves the right to withdraw from your representation. If you have asked the lawyer to review a prospective medical malpractice claim, please remember your claim is being accepted under these terms and conditions. Some of the difficulties related with medical malpractice claims are more specifically given below.
The defendant physicians in medical negligence cases receive verdicts in their favor exceeding 70% and often reaching 80%, or more. There are several reasons for this, namely:
1. The jury system is rather conservative — and in medical negligence cases, highly conservative.
For example, most elderly prospective jurors are extremely dependent on health care, that is why they tend to support the defendant physician’s position.
2. Fairness of the juror is increasingly compromised by insurance industry, by media and by propaganda.
This is not to say the propaganda generated is accurate; most of the time the information presented is provocative, but highly inaccurate. Despite this fact many jurors repeat what they have read, heard, or seen. Statements like these are heard frequently:
a. “Malpractice settlements and verdicts significantly drive up health care costs.”
b “Doctors order tests as part of defensive medicine.”
c. “Expert witnesses are mostly phonies and hired guns.”
d. “Are you one of those lawyers who advertise on television?”
3. The legal rules are slanted in favor of the defendant physician in many respects.
Expert testimony is required in virtually every case to prove the defendant physician failed to meet the established or existing “health care standard.” When a trial becomes a “battle of experts”, the petitioner is more often at risk and more likely to lose. The standard of care needed by medical providers incorporates “average” care. It does not require excellence.
4. Most of the time the legal “killer” is causation.
Defense verdicts are frequently delivered and rationalized by juries on this statement. In most medical negligence cases it is observed that almost every petitioner had some pre-existing condition that ultimately led to the injury complained off.
5. The vast majority of cases are not economically viable to pursue.
Without significant publicity, insurance carriers pay the defendant physician and his insurance carrier to delay the settlement, with the help of defense counsel. And that is exactly what happens. Thus, the plaintiff must either accept a nominal settlement or be ready to hire experts whose fee levels are often highly inflated. Litigation costs that are associated with an average contested medical negligence or medical malpractice claim more often than not exceed $50,000.00. And the hours that a lawyer usually spends on a case number to hundreds of hours.
Ten years ago, the conventional wisdom dictated rejection of medical negligence claim that had damage potential of less than $200,000.00. Today, because of the increasing pressure and the increasingly complicated nature of juries, conventional wisdom is not to accept a claim unless it has a value of, at least, $300,000.00.The above mentioned reasons demonstrate the difficulty and intricacy of medical negligence cases and the obstacles likely to be faced by the lawyer in the prosecution of such cases. These are the reasons, among others, that do not permit the medical malpractice lawyer to pursue every medical negligence claim that are reviewed by the lawyer.
NEGOTIATION AND SETTLEMENT
Once the lawyer has completed the initial evaluation, conducted the necessary investigation, and documented your claim as best as the lawyer possibly can, he/she will submit a demand note to our opponent to explore the possibility of settling your claim without the need of filing a lawsuit.
This process is treated in terms of the effort put forward just as if the lawyer was far along in the litigation process and preparing for trial. Demonstrative exhibits are frequently utilized as part of the settlement demand package, along with settlement videos, and bound settlement books .The goal is to make your claim stand out from every other claim received by the opposing insurance carrier. The ability to add a unique element to the claims of the clients often results in highly successful settlements.
If a claim is not resolved in the pre-suit stage, which does not mean that the lawyer will not continue settlement negotiations as appropriate. The entire lawsuit is often in reality, one long settlement negotiation. The goal after proceedings are commenced is to position the case so the best possible settlement or judgment can ultimately be achieved.