How much is a medical malpractice settlement worth?
How much a medical malpractice settlement is worth: more to it than “it depends.”
Clients and referral attorneys often ask me how much a medical malpractice settlement is worth in Sarasota, Bradenton, and the other venues where I practice in West Florida. My first reaction as a young lawyer was the accurate but lazy one: it depends.
There’s a lot more to it than that. This article lays out some of what I tell clients and referral attorneys. First, I explain how much insurance companies pay for medical malpractice settlements nationwide. The story of averages and numbers. Next, I talk about what it takes for trial lawyers to advise clients on settlement value beyond the insurance model. The story of humans and true losses.
The Story of the Numbers: Insurance Companies Payouts Nationwide
Insurance companies see the world in numbers. Diederich Healthcare, one of those insurers, collected those numbers nationwide. This insurer divided claims by the harm that occurred. The average national payouts by category in 2018 (the most recent year of reporting) are:
Quadriplegic, Brain Damage, Life Care: $1,029,105.
Major Permanent Injury: $600,797.
Significant Permanent Injury: $424,645.
Minor Permanent Injury: $236,057.
Major Temporary Injury: $214,407.
Emotional Injury: $91,678.
Minor Temporary Injury: $72,850.
Insignificant Injury: $34,333.
There are major limits to this data.
For one, averages are deceptive. As the old story goes, if you have one foot in boiling water and one in ice water, on average you are comfortable. So, these numbers cannot say whether a specific case will be appraised much higher or much lower than the benchmark.
Another limit is structural, because the numbers flatten individuals into illogical categories. Why is death not a permanent injury? Isn't death the permanent injury? Isn't it the ultimate paralysis?
The reason is that a death case generally has lower economic damages, such as lost wages and medical bills. But if you have ever lost a loved one due to the negligence of another, or have talked to someone who has, you know that these numbers are not nearly what was taken.
The final problem with these numbers is that they are nationwide. Venue is crucial in medical malpractice cases. Juries in Bradenton are different than juries in Sarasota, and different from those in Punta Gorda. Having a local, experienced attorney can help provide better data on the local variation for specific types of cases. Insurance companies will use this data as well to set their reserves.
Some Lawyers Buy Into This Model To The Detriment of Counseling Clients.
If a lawyer uses insurance payouts as the model for valuing a case, that lawyer might as well call himself an insurance adjuster.
I know of respected medical malpractice lawyers who focus more on relationships with insurers than their clients. The most appalling time was when a lawyer mispronounced his dead client's name in front of a widower. That lawyer knew how to say the adjuster's name, but not the most important name in the case: the victim of malpractice.
No doubt that lawyer thought he focused on the right thing: the money decision maker. But he caused needless harm by not caring for the human being sitting in front of him. He treated his client just like negligent providers and adjusters often do: like a number. There is more to being a trial lawyer, even when discussing settlement.
The Worth of A Medical Malpractice Settlement Beyond the Numbers
I believe caring about your clients, stepping into their skin, and learning their stories is the better way to understand value. I tell referral attorneys that the case's settlement value is the amount a client chooses to take after the lawyer takes the time to gain a visceral understanding of what has been taken due to the malpractice. (To learn how to do that, read anything written by, or watch any presentation by, Nick Rowley). The attorney also needs to have a true understanding of how much additional harm litigation and trial will have on their clients, balancing the trial value of the case against the client's condition to withstand a trial.
In Florida, the human losses that a jury must value for a non-death medical malpractice case includes pain, suffering, disability, physical impairment, disfigurement, mental anguish, inconvenience, and loss of capacity for the enjoyment of life. Fla. Std. Jury Instr. (Civ.) 501.2. Death cases mainly concern mental pain and suffering of the survivors. In my opinion, the best lawyers dive deep into developing stories around each of these categories of harm and insist on full value for these losses. Ensuring that the full value of what was taken is fully understood is essential to the foundation of civil law. Making up for the full loss is the only "fair and adequate" compensation for having a patient's health robbed due to malpractice. Fla. Std. Jury Instr. (Civ.) 501.1.
After doing that difficult work of caring, a medical malpractice lawyer can give true advice on what a settlement is worth for the real human seeking good advice. While there is no cookie cutter answer, "it depends" doesn't cut it, either.
This article was originally posted on my LinkedIn profile and can be found here.
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