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Negotiating Malpractice Liability Insurance SettlementsPart 2: More Tips for Negotiating with the Claims Adjuster...This page continues with more tips for negotiating malpractice liability insurance settlements. We reference the example in Part 1 of a boy getting injured due to the negligence of a doctor while in the hospital for abdominal pain. Again, it's important to understand that almost all medical malpractice cases require the services of a skilled personal injury attorney. Don't try to negotiate a serious medical malpractice claim on your own.
Tip #5 - ASSEMBLE ALL MEDICAL BILLS... Gather and organize all medical bills resulting from the injury, even if your personal insurance company has paid your medical bills to date. The medical bills, sometimes referred to as “Hard Costs” or "Special Damages", will be the basis of your malpractice liability insurance claim. Everything else builds around those hard costs. Tip #6 - LOCATE EXPERT WITNESSES... Without expert medical substantiation your claim won't be supported. Although in an "open-and-shut" case it's safe to presume the Claims Adjuster has accepted liability for the actions of her insured, accepting liability will not automatically result in compensation. Expert witnesses can be other doctors, psychologists, psychiatrists, physical therapists, or other medical professionals who might be helpful to the claim. In our previous example, Sean may need mental health counseling. He will undoubtedly need physical therapy to regain as much use of his right hand and fingers as possible. He will also need to learn to use his left hand for writing and other needs (which most of us take for granted). He may or may not require surgery. His future will probably be one without the proper use of his right hand. These are all a measure of Sean’s present and future limitations caused by his injuries. All deserve compensation. It will be up to his parents and attorney to collect the information, assemble it in good order and be prepared to present it in a cohesive and direct way to the Claims Adjuster. Tip #7 - BEGIN TO ASSEMBLE THE “HARD COSTS”... To do so you will have to take all of the Hard Costs assessed so far. Then after visiting with the experts, determine the approximate amount of money it will take to pay for Sean’s future surgeries, counseling, retraining, and psychological and physical therapy. That will not be an easy task. Determining personal injury settlement demand amounts is not an exact science, and there are no reference books which provide formulas you can rely upon. The best indicator is experience, which is why an experienced medical malpractice attorney is so crucial in serious med mal cases like Sean's. Tip #8 - THEN ASSEMBLE THE "SOFT COSTS"... “Soft Costs” are normally those costs related to the injury that can't be classified as Hard Costs. In Sean's case, they can include any future lost wages he forfeited as a result of his new disability (depending on various factors this could be millions of dollars). Although the amounts of Sean’s future lost wages may be unknown, it's still important to understand what Sean may have wanted to do with his life, and determine if his disability will prevent him from pursuing it. Soft Costs also include future out-of-pocket expenses. Those can be substantial and often include: medicines, bandages, costs of travel, and any other costs which his parents may incur on his behalf. Tip #9 - PREPARE TO MAKE YOUR INITIAL DEMAND... The traditional method used to arrive at a settlement demand is by multiplying the medical bills by a certain factor (for pain and suffering) and then adding other costs. There is no way of accurately determining total amounts for pain and suffering. The traditional method has been to take the total amount for medical bills and multiply it by 2x-5x or more. Then add all the other costs and out of pocket expenses. The final figure is the amount which should be paid to settle the malpractice liability insurance claim. Note:
In any claim involving permanent disability or death the settlement
demand should be many times higher than any minor personal injury
claim. Permanent disability and wrongful death cases are very
complicated and require the services of an experienced personal injury
attorney.
About as close as you'll come to a reference guide for the value of a malpractice claim is researching jury verdicts from previous personal injury lawsuits. You want to see the amount of money juries have awarded victims in cases similar to yours. You would be surprised at the disparity in verdict amounts from one area to another, so make sure you look for verdicts in your specific county. Reviewing of court records and jury verdicts won't be easy. It will take many hours going through numerous court files and assembling data. Tip #10 - DON'T GIVE A FINAL DEMAND OR THREATEN A LAWSUIT... Never say anything which could be construed by the Adjuster as a final "take it or leave it" demand. If you do, the Adjuster will probably play it safe and forward the case to the insurance company's legal department. Then you'll be speaking with lawyers who won't likely take any further action on the case until you get your own lawyer involved. It's also not a good idea to be insulting or harsh. Remember Tip #2. Be professional and stay calm. Doing so will keep your claim pending and negotiations open. Statements such as the following should always be avoided:
Anytime you communicate an ultimatum to the Adjuster she is trained to close the file and send it to the legal department. Remember, the Claim Adjuster’s job is to do everything within her authority to settle injury claims. Every time she doesn’t settle a claim she isn’t doing her job. If she doesn’t settle enough claims she may quickly be out of a job. Once the claim goes to legal department she has just cost her malpractice liability insurance company a lot more money. Tip #11 - NEVER IMPLY OR INVITE COLLUSION... Never take anything the Adjuster says or implies as an invitation to propose something unethical or illegal. This will also result in immediate transfer of the case from the Adjuster to the legal department. Then you'll probably receive a letter from the insurance company’s attorneys saying they've decided to cease any negotiations with you. Period. At that point they owe you nothing, and you will be left alone, wondering what went wrong and what to do next. These things happen, and although you're probably smart enough never to engage in such behavior, you should at least be warned of the consequences if you do. Tip #12 - KNOW WHAT CONSTITUTES PAIN AND SUFFERING... Knowing the basics is essential before you plunge into negotiations. You want to gain the attention of the Adjuster from the start. Knowing the difference between what constitutes pain and suffering and what does not will streamline negotiations, and should command the attention of the Adjuster. She will know she's dealing with someone who understands the negotiation process for pain and suffering and its application in settlement negotiations. Technically pain and suffering is a measure of how the injuries have affected you in a non-tangible and subjective way. In our previous example Sean’s right hand and fingers were fine before the MRI, and now because of the doctor and hospital's negligence Sean’s right hand and fingers hurt every day. For the first time in his life Sean suffers from bouts of depression directly related to his new disability. The Adjuster believes Sean has been suffering and will continue to suffer into the future. The question then becomes how much is that pain and suffering worth. Pain and suffering includes the affect the negligence and injury has caused to Sean’s mental state. If it didn’t they would just call it "pain" and leave out the word "suffering". The fear, helplessness, and the other very real but intangible emotional distress is considered part of Sean’s pain and suffering. Pain and suffering is not objectively quantifiable. The Adjuster may believe in Sean’s pain and suffering as a direct result of her insured’s actions. But she probably won't agree with the assessment of the amount Sean should be compensated for it. ----------------- Gain a better understanding of what negotiations are like - read a sample dialogue with a medical malpractice insurance company adjuster here. Return from Malpractice Liability Insurance to Medical Malpractice Cases Return from Malpractice Liability Insurance to Personal Injury Settlement Guide How Much Is Your Case Worth? Find out NOW! Complete this form for a FREE case review by an experienced attorney... The accuracy of information on this site is not guaranteed. Information on this site is strictly opinion and should not be considered formal legal advice. Under no circumstances should the information on this site be used to make decisions about the proper course of a legal matter. Click below to read our full User Agreement, Disclaimer and Copyright Information.
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