Do Most Medical Malpractice Suits Settle?

Yes. According to published legal summaries, medical malpractice lawsuits usually settle before trial rather than go to trial. You might not get paid. Just because settlements are common, you don't have to accept an offer. Before your lawyer advises you, they need to weigh the evidence and look over the proposed terms.

Most cases settle before trial, according to the articles How Often Do Malpractice Cases Go to Trial? and Medical Malpractice Settlements | Chicago, IL. You won't find a national settlement percentage or an explanation of how cases were counted in either search summary. That leaves gaps. When you read the general answer, don't take it as a prediction for your family.

Settlement and success aren't the same thing

As Medical Malpractice Settlements and Trial in Georgia explains, when a claim settles, it ends with an agreement instead of a trial decision. Going to trial means seeking a decision. Before you take someone's word that a case was “successful,” ask which way the case ended.

You can't tell how often patients receive compensation across all malpractice claims just because most suits settle. You'll need to ask separately. Whether a particular settlement covers the patient's harm is something that statement doesn't tell you, either.

Have your lawyer explain what they're counting. Are they counting filed lawsuits, or only claims that resulted in payments? Are cases that reached trial included? If you don't know what was counted, the percentage can give you the wrong impression.

Why the parties may choose settlement

Time can matter here. Settlements usually take less time than trials, according to Pros & Cons of Settlement vs. Trial in Medical Malpractice. As the article How Often Do Malpractice Cases Go to Trial? describes, settling can cost less and leave you with less stress.

When you're still dealing with an injury, getting the case resolved sooner can matter. But speed isn't everything. Whether an offer is reasonable depends in part on the evidence, according to the Georgia settlement article.

You can prepare for trial while still talking about settlement. According to Medical Malpractice Settlements | Chicago, IL, both sides have a reason to negotiate in good faith when trial is a possibility. You can't read much into talks. How strongly either side views the case isn't clear from those talks.

Why a case may not settle

Fault may remain a sticking point. When the parties disagree over fault, a case may be more likely to go to trial, according to How Often Do Malpractice Cases Go to Trial?.

Ask your lawyer to explain where the sides disagree in plain language if they say the other side disputes fault. What medical care are they questioning in the case? Have your lawyer explain what the chart shows and the other side's account of what happened.

Whether you get an offer or not, those questions still need answers. Rather than giving you a general statement about how often malpractice cases settle, your lawyer should explain their recommendation using the actual records.

How to assess a settlement offer

Look first at the harm. According to Medical Malpractice Settlements: Your Questions Answered, the circumstances can make settlement amounts vary widely. How much harm occurred matters most, the article says.

Don't stop at the headline amount. Ask your lawyer to put the proposed payment and what you'd actually receive in writing before you decide. Find out whether fees or expenses would come out of it. Whether medical bills affect your share needs an explanation from them, too.

• Why does the evidence support accepting this amount?
• Where does the other side still disagree?
• After the proposed deductions, how much would I actually receive?
• If we continue toward trial, what's involved?
• If I accept the payment, what terms come with it?

A headline average or another patient's story doesn't have to be your yardstick for judging an offer. Have your lawyer explain it in plain language. If they favor settlement or recommend continuing the case, your lawyer should tell you why.

What to do next

Before you decide on an offer you already have, ask your lawyer to explain it in writing. Bring the questions you have about medical records and bills. Has anyone reviewed your claim yet? If not, request a case review and ask how your state or province's rules apply. Our medical malpractice guide is another place to start.