Medical malpractice is the third-leading cause of death in the United States, according to Johns Hopkins University. Although this fact alone might justify the multitude of medical malpractice lawsuits that arise every day, fewer than 25% of medical malpractice victims win at trial. This harsh reality encourages defendants to refuse to settle or to offer “lowball” settlement offers.
Plaintiffs who win medical malpractice claims, however, collect substantial compensation. Plaintiffs who hire lawyers to represent them have the best chance of winning, whether at trial or at the negotiating table.
Remember that medical malpractice insurance adjusters are professional negotiators. Nevertheless, since “all bargaining takes place in the shadow of the law,” hiring a lawyer can really level the playing field for you.
What Is Medical Malpractice?
Medical malpractice occurs when a healthcare professional physically harms a patient by providing substandard healthcare. If this happened to you, you probably have a medical malpractice claim against your healthcare professional.
A medical malpractice defendant can be an individual, such as a doctor, or an institution, such as a hospital–or both.
The Elements of a Medical Malpractice Claim: What You Have To Prove To Win
If you file a medical malpractice claim, you bear the burden of proving your claim, whether in court or at the settlement table. Following is a list of facts that you must prove to win:
- A doctor-patient relationship was formed. This is easy to prove unless, for example, the defendant happened upon you after a car accident and rendered roadside first aid.
- The defendant owed you a particular duty of care. The duty of care is beyond dispute—but exactly what was that duty? To order certain lab tests in response to your complaints? You might need a medical expert witness to prove this.
- The defendant breached their duty of care to you. Again, you might need a medical expert witness to prove breach of duty.
- You suffered tangible physical harm. It is not enough to suffer “a good scare” because the doctor mistakenly diagnosed you with a terminal disease.
- The defendant’s breach of duty was the foreseeable cause of the harm you suffered.
You must prove each of these elements on a “preponderance of the evidence” (51% likelihood) basis. Failure to do so will not motivate the defendant to issue you a generous settlement offer.
The Expert Affidavit Requirement
Georgia enacted the “expert affidavit” rule in response to a flood of frivolous medical malpractice lawsuits. It requires you to submit an affidavit signed by at least one medical expert, attesting that the defendant’s medical treatment was negligent and providing a factual basis for this claim.
The defendant will probably ignore your offer to settle your claim until you produce a credible expert affidavit.
Defenses Against Medical Malpractice Claims
Depending on the facts of your case, the defendant might have numerous potential defenses against your medical malpractice claim. Following are descriptions of a few of them. Some of them are complete defenses, while others are partial defenses.
Expiration of the Statute of Limitations Deadline
You must file a lawsuit over your claim before the statute of limitations deadline expires. If you don’t, the value of your claim will drop to zero immediately. The general Georgia statute of limitations deadline is two years after the malpractice occurred.
You can extend this deadline up to five years after the date of occurrence of the medical malpractice if you reasonably failed to discover the malpractice until later.
Consequences of missing the statute of limitations deadline
If you are certain that you missed the applicable statute of limitations deadline, you needn’t even bother trying to negotiate with the defendant. You will have no bargaining leverage because you cannot maintain a lawsuit.
All the defendant has to do is raise the statute of limitations defense, and the judge will throw out your claim.
However, note that there are exceptions to the statute of limitations. Contacting a qualified attorney as soon as possible is the best way to protect your legal rights and options.
Comparative Negligence
Sometimes, multiple parties share fault. In Georgia, a court can reduce your damages in exact proportion to your percentage of fault for your own injuries. If you were 15% at fault, for example, a court can subtract 15% from your compensation.
If you were 50% or more at fault for your own injuries, a court will reduce your compensation to zero. Even in settlement negotiations, the defendant can refuse to settle for any amount that exceeds what a court would likely award you.
Example: You fail to provide your doctor with your complete medical history, which leads to an adverse drug interaction. The defendant might claim that your failure to provide a complete medical history constituted comparative negligence.
Failure To Mitigate Your Damages
Even if the defendant committed medical malpractice against you, they are under no obligation to compensate you for damages that you could have avoided through the use of ordinary care.
While comparative negligence applies to actions that you took before the malpractice occurred, failure to mitigate damages takes place after the malpractice occurred. For example, you might worsen your condition by refusing to take prescribed medication.
The defendant might check your social media posts, or even hire a private detective, to catch you acting in a manner that worsens your condition. If they catch you, you will feel the heat at the negotiating table.
Pre-Existing Injury
The defendant might claim that the injuries you claim were the result of medical malpractice actually occurred before your medical treatment. The claim would be that your injuries were “pre-existing” and that you’re just trying to use your medical malpractice claim to get the insurance company to pay for treating an old injury. This is a very common negotiating tactic.
Filing a Lawsuit
You can file a lawsuit over a medical malpractice claim even if you never intend for your claim to go to trial. After all, you can always withdraw your lawsuit later. A lawsuit might help by:
- Getting the defendant’s attention if they have been ignoring you;
- Beating the statute of limitations deadline; and
- Giving you access to the pretrial discovery process, whereby you could gain access to critical evidence.
If your claim is strong enough, you can “play chicken” with the defendant to win concessions at the negotiating table.
Wrongful Death Claims Based on Medical Malpractice
If the victim of medical malpractice dies from their injuries, their personal injury claim converts into a wrongful death claim. The claim remains a medical malpractice claim, however, because of how the injury initially arose. Georgia allows surviving spouses or other close relatives to seek damages for the deceased’s death.
Survival Actions
The executor of the deceased’s probate estate can pursue a survival action in addition to a wrongful death action. They can seek compensation for the deceased’s medical bills, pain and suffering, and other damages that occurred between the time of the injury and the date of death.
Effect at the Bargaining Table
A strong wrongful death claim is a fearsome weapon to use at the negotiating table, as courts typically place a high value on human life. If your evidence of malpractice is strong, you can probably secure a generous settlement offer out of the defendant.
Contact an Experienced Atlanta Medical Malpractice Lawyer
Settling a medical malpractice claim with an insurance adjuster is a difficult task. You are dealing with a professional negotiator who will certainly offer you far less than your claim is worth. Hiring a seasoned medical malpractice lawyer can help you fight back.