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Medical Malpractice Lawsuit: To Settle or Not to Settle. What is the best option ?

Cleveland, OH |

My brother's lawyer recently asked permission to negotiate a settlement in a medical malpractice lawsuit involving his daughter and a hospital (his daughter died due to lack of proper standard of care). What questions should he ask his lawyer regarding this matter ? What is the monetary value (i.e. minimum and maximum) of such a suit/ case given that the medical expert's assessment indicates that my brother has a strong case ? What parameters / conditions should he ask about and/or be aware of ? Under which conditions should my brother settle or not settle ? Your constructive input is welcome and appreciated.

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Attorney answers 4


This is a very sad situation and takes a huge emotional toll whether they win or lose. Only an attorney familiar with: 1) the facts of the case; 2) Ohio law ;and, 3) the jury pool in the County where this case is pending, can tell you what the verdict potential is and what the settlement value is. Ask what are the medical arguments each sides experts are prepared to testify? Does the medical literature support our medical theories on departure and causation? What is the family's attorney recommending be done and why? Has a settlement demand been made--how much? Any offers yet, if so how much? You must trust the lawyer. The question for your brother is whether he has any reason not to trust the lawyer he brought the case to.


Never settle for a lawyer who only knows how to settle. The highest settlement offer in my experience is right before trial, when the judge puts the screws to the attorneys to reach a settlement.


First, I am sorry to hear about the loss of your niece.

Regarding the claim, there is no way for us to evaluate the value of the claim. So much goes in to determining the value, including your niece's age, what her condition was when she went to the hospital, what was done improperly, how much she suffered before she passed, etc.

He needs to ask the attorney whether the attorney feels he would recover more at trial or through settlement. Please keep in mind there are no guarantees. When we evaluate whether to take a case to trial or whether it would be best to settle, we look at past jury verdicts, whether the jurors in our county are conservative or more plaintiff friendly, how much it will cost to pursue the claim through litigation, etc.

The cost of pursuing a medical malpractice claim is extremely expensive and even if you could recover more at trial, it does not mean that you will net more in your pocket; however, your brother's attorney should be in the best position to make that determination as he is most familiar with the facts. Ask the attorney whether he thinks settlement is in the best interest of your brother.

If the attorney is just now starting the negotiating process, it is too early to determine whether settlement or trial is best. Often, we attorneys cannot recommend settlement or trial until we know what the other side is willing to do. Before that, we cannot know whether we think the recovery will be more through settlement or through trial.

An attorney can often anticipate some of the questions that a client will ask based on experience and will likely be able to answer some of your brothers questions that he does not even know he has.

Once again, I am sorry for your loss. Good luck!

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To best answer your question, a lot depends on how far along the litigation is in. If the other side has deposed your experts, and a mediation or demand is requested, then I have no problems going to a mediation to attempt to settle. Any demand or attempt to settle before they have take your experts deposition is usually a waste of time. If the offer isn't recommended by your attorney , don't settle. Insurance companies know what lawyers are willing to try cases, and which ones just settle and don't go to court. There are verdict reporting services that can give you a history of verdicts concerning wrongful death in your jurisdiction. There are just too many variables to answer your question simply. If you trust your attorney, he/she is in the best position to know what the value is. If your attorney is wanting to settle before depositions have been done, you need to ask some pointed questions to find out why. Remember defense attorneys get paid by the hour and usually don't have any incentive to settle early.

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