kGuide to Medical Malpractice in Ohio, Step Four: Settlement Negotiations
After the interrogatories, requests for production of documents, and depositions are completed, the next step is usually for the lawyers on either side to analyze all of the information that they have before them and try to at least attempt to work out a settlement so as to avoid trial. These days, it seems that many individuals – plaintiffs and doctors included – are risk adverse. So, settlement can sometimes be an attractive option. Therefore, it is likely that the parties will engage in some sort of a back-and-forth negotiation and at least try to agree on a number that both sides can live with in order to settle the claim. However, although the majority of personal injury cases settle out of court, medical malpractice cases are a unique breed of personal injury case, and they can be extremely difficult to settle.
The defense lawyers oftentimes will search long and far for high quality and nationally known medical experts who are willing to testify that the provider in question did not breach the standard of care (note: we also always try to find high quality and nationally known experts for our clients). Obviously when the defense finds such an expert, it makes settlement that much more difficult because the defendant doctor becomes even more confident that the jury will believe that he or she gave appropriate care. Also, because a settlement can have negative consequences on a doctor’s malpractice insurance premiums, the doctor may become inclined to “take a gamble” and try the case in an attempt to avoid a premium spike.
Assuming that settlement talks do go forward, one avenue that can be used to try and settle a case is “mediation.” Mediation is a voluntary process where both parties and a neutral mediator come together and attempt to reach a mutual agreement that will lead to a complete settlement of the case. Oftentimes during mediation, each of the respective parties are located in separate rooms, and the mediator will go back and forth between the rooms and engage in discussions with each of the parties. The mediator will carefully listen to the positions of both parties and then assess for himself, as a neural party, the strengths and weaknesses of each side. With the permission of the parties, the mediator will communicate messages and settlement offers to the other side. More significantly, he will (1) provide the parties with his own candid thoughts on the matter, (2) attempt to make one side see the true strengths/weaknesses of the other and visa versa, (3) make the parties consider the true plusses and minuses of going forward to trial as opposed to settling, and (4) provide a jury-like neural and unbiased perspective. Again, any settlement agreement that would be entered into at mediation would be completely voluntary, as either party is free to walk away from the mediation at any time.
Mediation can lead to a settlement where both sides know exactly what they are getting without the uncertainty and stress of trial. However, the security of “knowing what you are getting” comes at a price. The doctor who may believe that he or she did nothing wrong will be faced with the reality that they have to pay out a significant and substantial sum to the plaintiff. Likewise, the plaintiff who may believe that their case is worth several million dollars may have to entertain the idea of settling the case for several hundred thousand dollars. Again, the cost of not having any risk is substantial for both sides. It is often said that a successful settlement is one where both sides walk away from the table having settled the claim, but cursing under their breath.
Of course, the final decision as to whether to settle for a given amount (or whether to proceed to trial and let a jury decide) is always a decision that will be made by the client. We believe it is our job to give our clients the absolute best information and counsel that we can in order to help them to make the most informed decision in light of their specific circumstance. However, we will never put undue pressure on a client to settle or to proceed to trial: we give advice, but the ultimate decision will be yours.
If your claim settles, that is essentially the end of the case. We will wait for a settlement check and release agreement to be provided for your signature. Almost all settlement agreements contain a “confidentiality clause” which will prevent any of the parties from discussing the matter with third parties, especially the settlement dollar amount. This helps to ensure that the parties’ privacy is respected.
If settlement negotiations are not successful and the case is taken to trial, the lawyers will begin preparing all of the relevant pretrial motions and other documentation that must be completed prior to the commencement of trial. As the date for trial inches closer, you will be in contact with our office more and more and you will go through extensive preparation in order to make sure that you are completely ready for the trial experience. Trial is nothing to be scared of as long as you are properly prepared and know what to expect, and rest assured that our experienced Ohio medical malpractice lawyers will make sure that you are properly prepared and know exactly what to expect on the date of your trial.