Can You Settle a Medical Malpractice Claim Without a Lawsuit?

It is exceedingly rare that medical malpractice cases be resolved before a lawsuit is formally filed in court.

Negotiating a medical malpractice settlement is a unique process. Unlike other personal injury cases, such as those stemming from slips and falls or auto accidents, medical malpractice cases can be subject to specific state laws that could affect the terms of a settlement. Furthermore, when negotiating settlement, medical malpractice insurers are far more aggressive than a typical general liability insurer might be.

Negotiating Without Formal Legal Proceedings

Before you can begin negotiating a medical malpractice settlement with a negligent physician or their insurance company, you will have to put them on notice that you are making a claim.

This may be as simple as a phone call or letter from you to the doctor, or as complex as a formal court filing in anticipation of a medical malpractice lawsuit. And once an offending physician is on notice of the potential claim, negotiations might die on the vine.

In general, medical malpractice insurance companies require their insured doctors to immediately notify them of any potential claims. Failure to do so can result in a denial of coverage, which could be bad for all parties involved. So know going into a potential medical malpractice negotiation that your desire to settle may be irrelevant. If a medical malpractice insurance company gets involved, they will likely force you to file suit and comply with any and all formal notice requirements before they will even begin to contemplate settlement.

Insurers employ this strategy in part because they know there are more procedural hoops for medical malpractice plaintiffs to jump through, compared with a typical injury case.

In rare cases, doctors are self-insured and will agree to negotiate a settlement. They are not burdened by any reporting requirements. Even more rare is the situation where an insured doctor informs his insurance company of your intent to settle and receives permission to settle the claim without any involvement from the insurance company. This generally only happens in cases that are on either extreme side of the spectrum -- extremely minor or unequivocally and admittedly the physician's fault.

Nine times out of ten, once you put a physician on notice by making a settlement demand, they will immediately notify their insurance company and your claim will be bogged down by legal, procedural and administrative red tape. Negotiating a medical malpractice settlement absent some type of formal legal action (a lawsuit, pre-suit filing or some type of alternative dispute resolution) is extremely rare.

Negotiating While the Legal Process is Ongoing

Negotiating a medical malpractice settlement normally occurs sometime after you either express your intent to file suit or you actually begin the formal legal process by filing a Notice of Intent to Sue (NOI). Only certain states require an NOI prior to a lawsuit, and your claim may be subject to multiple other jurisdictional quirks depending on where it is filed. In any case, letting a doctor know that you intend to file a formal claim will normally trigger insurance company involvement.

Once an insurance company is involved, you or your attorney can try to negotiate a settlement. Unlike in other non-malpractice personal injury cases, doctors often have the ability to accept or reject a proposed settlement despite the fact that their insurance company may wish to settle. This is normally because states require doctors to report medical malpractice settlements, which could affect licensing, future employment and insurance rates going forward. While they do settle, medical malpractice cases settle far less often than other types of personal injury cases.

At any time during the legal process -- pre-suit, arbitration, discovery, trial, and post-trial -- the parties may agree to a settlement. Negotiating a medical malpractice settlement takes time, patience and information. Often, the assistance of a mediator is required to get the parties to agree on a number. Negotiating a medical malpractice settlement can be an emotionally charged endeavor, and the presence of a neutral party acting as a go-between will often yield positive results.

An Experienced Attorney Is Your Best Ally

Medical malpractice cases are complex. The facts surrounding your injuries, the law governing how you may proceed with a claim, and the give-and-take between all interested parties is difficult for a layperson to navigate. Unlike in a simple slip and fall case, using an attorney to negotiate a medical malpractice settlement can often result in a much greater recovery for you, despite the fact that you’ll have to pay for the attorney’s services.

If you think you have been the victim of medical malpractice and need help negotiating a medical malpractice settlement, contact a reputable, medical malpractice attorney to assist you in making your claim.

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