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Medical Malpractice Insurance Company NegotiationsPart 3: Sample Dialogue with
Claims
Adjuster
Negotiating with a medical malpractice insurance company can be tricky. There are a variety of negotiation strategies used by personal injury attorneys when handling these types of claims. Although it's never advisable to handle your own medical malpractice case (they are too complicated and the stakes are too high to go it alone), you can use these same techniques in your own injury claim.
We use the case example from Part 1 (a boy injured as the result of his doctor's negligence), as a basis for the negotiations. Obviously this dialogue won't match your circumstances exactly. Use it more as a guideline of how a typical medical malpractice case negotiation works. The "Notes" section explains important negotiation techniques used by both parties. It's in these notes you will find the most generally applicable information. ------------- What follows is a hypothetical negotiation between a medical malpractice insurance company and an injured party (in this case it's Sean's parents - they've chosen not to hire a personal injury attorney). The purpose of this negotiation is to identify the doctor and hospital's negligence, and to determine the amount of compensation which Sean deserves in return for that negligent behavior. Although case specific this dialogue represents the form and substance of most successful dialogues between insurance companies and victims. Using the following dialogue as a guideline will help you keep on track as the settlement negotiations unfold. Following this dialogue will not guarantee you the exact settlement amount you're requesting, but it will go a long way in helping you achieve that goal. Sample Dialogue of Settlement Negotiations with the Medical Malpractice Insurance Company... ADJUSTER: “I’ve reviewed the medical bills, out of pocket expenses, and description of the pain and suffering you say Sean is dealing with. The amount of your demand is much more than we believe the claim is worth." Notes:
Some people think Adjusters will offer less to a non-lawyer than a
lawyer. That 's not necessarily
true, but it can be. Adjusters exist to try and
settle a claim for less than it would cost if a lawsuit was filed.
If you're representing yourself the Adjuster may not give your case fair consideration because you don’t have the same leverage attorneys have - the ability to file a proper lawsuit and pursue it through depositions, interrogatories and all other trial matters. Adjusters know your competency to file and pursue a lawsuit doesn’t extend much past Small Claims Court. The same experienced Adjusters know that even though they may have spent countless hours negotiating with a non-attorney injured party, that person won’t hesitate to hire an attorney if they don’t think the Adjuster’s final offer is fair. If that happens the Adjuster knows she wasted all that time and the case still wound up in the medical malpractice insurance company's legal department. This raises the company's costs significantly. If you are organized, professional, and not willing to settle the case quickly just to get your hands on some money, the Adjuster will most likely take you seriously and negotiate fairly. INJURED: “I've given you all the hard costs, out of pocket expenses, and the medical prognoses of three doctors. My son may never have the full use of his right hand again. He may have a permanent disability. The doctors say Sean may need surgery in the future to attempt to afford him more mobility in his right hand and fingers. My son didn’t ask for this. He had a bright future, and he may still have, but he will have to overcome his disability each and every day to do so. All of this was as a direct result of your insureds’ negligence." Notes:
The adjuster will not argue with you about the disability.
Although a sensitive subject, you will have to rely upon the disability
to work toward an appropriate settlement. You shouldn’t feel
uncomfortable using a disability as the primary leverage for your
claim. Always remember, you didn’t bring this upon yourself.
INJURED: “I don’t know if you've ever had a healthy family member suddenly have their life changed forever as a result of someone else’s negligence. If you have, you might have some empathy. My son Sean wakes up nights crying. He's right-handed and everything he used to take for granted has changed." ADJUSTER: “Although I can't tell you I understand how you feel, I'll do my best to work toward a fair settlement. With that understood I've also reviewed all the documentation you provided. I have investigated this claim thoroughly and have come to the conclusion the amount of $200,000 dollars is a fair and appropriate settlement." INJURED: “I think that offer is way too low. I’ll think about it over the weekend and get back to you early next week”. Notes:
Adjusters need to settle cases, that's their job and they likely have a
pile of other cases sitting on their desk. Telling the Adjuster her
offer
was too low, then telling her you'll get back with her early next
week is a clear sign she's not going to buy you off quickly and cheaply.
Although this is not a game, the Claims Adjuster has just tested you. Don't react emotionally and don't jump at the first offer. Before the next call look again at your hard costs. Add all the past medical bills and do your best to estimate the future bills. Also add all the out of pocket expenses already spent and do your best to extrapolate them into the future. In our example case, the amount Sean's parents have come up with for hard costs is $175,000. INJURED: (after the weekend) “I gave your offer a good deal of thought and must tell you it's substantially lower than I can accept.” Notes:
Sean's parents don’t know how to estimate an amount for pain and
suffering, but they know $200,000 is not nearly enough to cover the
hard costs, out
of pocket expenses, past, present, and future bills, possible lost
wages, and
pain and suffering.
They spent some time at the courthouse looking at lawsuits for similar personal injuries. They saw lots of jury verdicts in similar cases. Eventually they got a general idea of appropriate payouts involving teenagers who were seriously injured as a result of doctor and hospital negligence. ADJUSTER: “Well, how much would you accept?” INJURED: “I've researched court records and jury verdicts. The average jury verdict in cases where children have been permanently disabled as a result of the negligence of doctors, nurses, and other medical personnel is $950,000 dollars. That's what I want for my son Sean." Notes: By doing this Sean's parents have effectively put the Adjuster on notice. She knows they researched
jury verdicts and because they have remained calm
and collected during negotiations she also knows they're
serious. She's probably not prepared to offer the $950,000 but she now knows there is a number – an amount on the table.
She's also just as aware of the jury verdict amounts. Part of her job, especially as a Senior Claims Adjuster, is to be aware of everything relevant to personal injury medical malpractice settlements and jury verdicts. Both parties know the settlement will be somewhere between $200,000 and $950,000 dollars. The question remains, what will that amount be? All medical malpractice insurance company adjusters have what's referred to as “Authority to Settle”. There is a certain amount of money the Adjuster is authorized to pay. The authority is usually dependent upon seniority and status. ADJUSTER: “I don't have the authority to pay out $950,000. I'll have to meet with my supervisors to see what they have to say.” INJURED: “Well how much authority do you actually have?" ADJUSTER: “I can't give you that information at this time. Right now I don’t have authority for anything near that amount.” Notes:
The adjuster does not have to reveal what her
limits are or how much she's prepared to pay. That
information will only be available if a lawsuit is filed and the
attorney requests it at pre-trial discovery. But she can reveal the
limit if at some point she thinks it will help with negotiations.
The reason for not wanting to divulge payout authority is because as soon as she does she knows you will request that exact amount or $1.00 less. You would have effectively “bumped up" the negotiations. Words like "right now" are important. The medical malpractice insurance company adjuster is not saying she can’t get more money. Instead she's saying she doesn’t have authority to pay any more right now - the implication being she could possibly go to her supervisor to increase her authority. INJURED: “Well this case certainly merits your going to get it. You know what the jury verdicts have been. I can’t understand why you won’t pay $950,000.00 dollars.” ADJUSTER: “But we're not talking about jury verdicts. First, they take years to get to trial, and then if we lose the case it's usually appealed. That means you might not see any money for years. Plus the court fees are astronomical. You'll lose half that amount in fees alone.” INJURED: “I want to settle this case, but the settlement must be fair. You know your offer is not fair. Although I'm not considering hiring a lawyer right now, I am starting to wonder if I may have to." Notes: At
this point in the negotiation there seems to be a
stalemate. That's quite normal.
ADJUSTER: “You don’t want to hire an attorney. You know they will take 33% of any settlement, and if the case goes to trial, probably 40%. To be honest, our policy is not to change our offer just because an attorney gets involved.” Notes:
The Adjuster is now concerned because for the first time the issue of
a personal injury lawyer has come up. Although Sean's parents were smart enough
not to say they
hired an attorney, or threatened to hire one, they at least
let the Adjuster know they are considering doing so.
The Claims Adjuster is not panicking, but she's starting to give serious consideration to all the time and effort she's already invested in this case – realizing she now is on the brink of losing this negotiation to the legal department. ADJUSTER: “I'll go back to my supervisors and see how much higher they will go. I don’t know what to tell you. I will do the best I can." INJURED: “The amount must be much closer to $950,000 dollars. I don’t think I can take much less." Notes:
This is the first time Sean's parents have let the Claims Adjuster know they are
willing to accept less than the $950,000 dollars. They didn’t say the
amount has to be $950,000 dollars, but that it must be closer to
that amount (that's pure negotiating).
ADJUSTER: (a week later) “I've spoken with my supervisors and they have given me the Authority to offer $350,000 dollars. That is our final offer.” Notes:
There it is. The Claims Adjuster just said $350,000 is the medical
malpractice insurance company’s final offer.
Once you hear the words "final offer" you know if you don't accept that amount you'll have to hire an attorney and file a lawsuit. Doing so, as we heard earlier, is a multi-year process. And if the verdict is in your favor, you run the risk of the insurance company appealing the case. That will take even longer. ---- Sean's parents' initial demand was $950,000 dollars. They have now been offered $350,000 dollars. If they don’t accept that amount they can take their chances at trial. Sean's parents must decide on Sean's behalf whether to take the $350,000 dollars now, or wait for several years while Sean’s case winds its way through the bureaucracy of the court system. What's the upside? The upside is a possible jury verdict of much more than $950,000. The verdict also could be much less. Whatever the amount there is always the possibility the insurance company will appeal if they feel the award is excessive. An appeal will extend the case another year or two. -------------- In serious medical malpractice cases it's necessary to retain an experienced personal injury lawyer. Don't try to go it alone! There is too much involved and the stakes are too high to try to negotiate a malpractice settlement on your own. At the very least you should sit down with an attorney for an initial consultation. Most reputable injury attorneys offer a free consultation to discuss the merits of your case. Return from Medical Malpractice Insurance Company to Medical Malpractice Cases Return from Medical Malpractice Insurance Company to Personal Injury Settlements 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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