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Medical Malpractice Settlement: What expectations should I have / not have if I choose to settle or not to settle?

Cleveland, OH |

I currently have a medical malpractice case concerning the death of my wife in hospital during a simple procedure; she was the patient. Expert evidence suggests that the hospital is directly culpable. The hospital is pressing for a settlement, but it is unwilling to meet my request for compensation half-way. My questions are:
1) Why should I settle given that my case is strong ?
2) What are the pros & cons of a settlement?
3) What is the average monetary value of a settlement like mine?
4) What conditions should I expect to be bound to in the settlement ?
5) Will my children be bound to the same settlement conditions although they are not plaintiffs?
6) Should I expect a lump sum or incremental settlement payments ?
7) Must I pay taxes on the settlement?
Expert advice appreciated. Thanks.

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Attorney answers 6


I'm very sorry for your loss. My advice is that you need to contact a wrongful death / medical malpractice attorney as soon as possible, period. If your wife passed away, there is both a medical malpractice claim and a wrongful death claim, both of which must be pursued by an estate representative. You have only one year to file medical malpractice. This is serious business and not something anyone should handle pro se. (The hospital has lawyers on this, I promise you.)

Disclaimer: I am a lawyer licensed in the State of Ohio only, and I am not your lawyer (unless you have been in my office and signed a contract). This communication is not intended as legal advice, and no attorney client relationship results. Please consult your own attorney for legal advice, or contact me directly at 216-696-3232 if you wish to inquire about retaining my firm. This is for information purposes only.


First, I'm sorry to hear of your loss. Regardless of how strong your case is anything can happen if you go to trial. Some say the sign of an experienced attorney is they won the ones they should have lost and lost the ones they should have won. The pro of settlement is you get closure. No more depositions, trial preparation, meeting with your lawyer, no trial and the emotional testimony and no appeal. You settle and its pretty much done when the check clears. The bad thing about settling is you'll never know what a jury might have done. You'll hear about cases that aren't as serious or injurious as yours that got double, triple or ten times what you got.

Average monetary value is tough. Your attorney is the best person to talk to about this, and it will be a crap shoot.

You might be asked to sign a confidentiality agreement. It's bad for business when people find out a healthcare provider hurt and not healed. If the kids aren't parties they're not bound, but if they run out and tell the world what you received it will be imputed to you and may be a breach of the confidentiality agreement.

Several variables in how you get paid. Can't say for sure. If you get paid over time then your settlement should be larger than if you lump summed.

In my jurisdiction settlements aren't taxable. Also the income may effect other state or federal benefits you might receive or be entitled to.

Finally, mediation might be worth while. A good mediator can help you see the pros and cons of your case.

Don't forget to check "Helpful" if I helped you out. This response is not intended to create an attorney client relationship and is based on the limited information available at the time of the response. Before acting on anything stated or referenced in this response you should consult with an attorney of your choosing and go over the specific details of your legal circumstances. My responses are also given in the context of the laws of the State of Louisiana. To the extent this comment involves principles of law governed by another state my comment merely reflects my opinion and should not be considered legal advice.


The only thing I can guarantee you is that if you settle your money will be certain. In other words no risk of losing your case. If you have a lawyer you need to ask him these questions. If you don't...get one now! Med mal litigation is difficult, cut-throat, expensive and complex. If the hospital is offering you a settlement without counsel their offer is too low. Before doing anything talk to your lawyer and if you don't have one get one now (blue link below)! I will attempt to answer your questions though. No way to tell you the value of your case without more info about your wife, her illness, profession, age, etc... Yes, your entire family will be bound by a settlement. Unless you choose to structure your settlement your payment will be a lump sum. Your settlement will almost certainly not be taxable. The terms of the settlement will probably be confidentiality and you will not have any future rights to sue or to make any claims against the hospital. I hope this helps but you really should have counsel.


I am truly sorry for your loss. I am assuming you have an attorney who is handling this for you. If he/she has gotten you this far along with some talk of settlement I would listen to your attorney's advice--that's why you hired this attorney. If you feel uncomfortable then you need a new attorney. I am not saying this to encourage you to switch lawyers but rather the opposite, listen to your lawyer who I assume has handled these cases before. If you do not have counsel which I suspect is not the case, retain someone immediately. These cases are difficult and risky even for the most experienced medical negligence lawyer. Let me tell you something a little provocative: I do not know the facts of your case but I do know this: You case is NOT strong. I am sure you are a very nice person and your wife was a wonderful person as well. These traits really should not matter but they are vital in any case.--juries want to help people they like. I will assume the facts of the negligence are straightforward and you have excellent expert(s) supporting your position. I would be happy to handle such a case. But here are the facts--I'll use Allegheny County (Pittsburgh) as an example: over 90 percent of the medical negligence cases that go to trial are lost. How can that be? Could it be possible that there are 90 percent frivolous lawsuits? NO! Juries despite the fact that negligence is clear may for a multitude of reasons ignore facts and evidence and rule in favor of the doctor. A settlement brings finality and certainty to the case. Nonetheless if the offer to settle is unreasonable and you are willing to take the risks inherent in going forward then you should reject the settlement offer. I have a settlement mediation this week on a case scheduled for trial in November. The negligence is clear and straightforward--really do not even need experts--though they are required. The family are nice people. The only real defense in this case is that my client was old and had many other medical problems and probably would not have lived that much longer anyway. That's it! The family loved him all the more and none the less because he was old and sick--and just because he was sick does not mean they could kill him--basically tortured him for over a month. We will settle if we can but we are prepared to go to trial knowing the risks.
With regard to the "average" monetary value, you have provided no facts that would allow for any meaningful assessment. The nature of the malpractice is a factor as well as the following: the age of your wife, the age of your children, her prior health, her loss of income, her contributions to the household and how they are being addressed now, the suffering she endured before she died, the amount of bills.
With regard to the conditions you should "expect to be bound to" in a settlement, most likely the settlement agreement will call for confidentiality--you cannot discuss the terms of the settlement including the amount. YOur children probably are no parties to the actual settlement agreement so they may not be bound but I say that with some caution since that may depend on what the "settlement condition" is and their ages, etc.
Unless your state mandates some type of incremental payment even for settlements, the form of payment is something to negotiate. Defendants like structured settlements and sometimes they are good for the Plaintiff. The key to remember here is do not focus on what it is worth in the future--pay attention to the amount that will initially fund the structure--that's the true settlement figure.
If the settlement is strictly characterized as wrongful death--what you and your family has lost, then there should be no taxes. In Pennsylvania if there is an out of court settlement, the court must approve it and we also need to get the approval of the department of revenue. They usually will want some percentage to be survival damages which are taxed at I believe 4%.

If you feel this is the "best" answer or is "helpful," please indicate. Since I am limited to the information you provide, I cannot guarantee the accuracy of the answer. You should seek the advise of an attorney who can explore all aspects of your question. This communication does not form an attorney client relationship.


The fact that the hospital is pressing to settle is a great sign, as that rarely happens. Have a top-rated Avvo malpractice lawyer investigate the claim. Don't settle without a lawyer, or you will be stuck with a tiny nuisance settlement, a tiny fraction of the true worth.


These are questions that are best addressed to your attorney when you get one. Just because the hospital says that they are anxious to settle doesn't mean that they will offer anything in the ballpark of fairness to do so. Moreover, there are too many places that settling without an attorney can go terribly wrong for you.

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