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Negotiating Medical Negligence Claims for CompensationPart 1: Sample case and negotiating tips...Medical negligence claims should almost always be handled by a skilled personal injury attorney. These cases are simply too complicated for a layperson to effectively negotiate and win a fair settlement. If your medical malpractice case involves anything more than $5,000 in damages, consult an attorney.
We examine the case from the perspective of her parents who decide to pursue settlement negotiations with the doctor and hospital's medical malpractice insurance company. We'll present different tips and strategies for negotiating insurance settlements but again, in cases like this you should always consult a skilled attorney licensed in your state. Medical Negligence Claim Example... Sean
is 16 years old and for the last couple of
days he's been complaining of belly pain and nausea. At
first his parents gave him some over the counter medications. But when
his condition worsened and he started vomiting they took him directly
to
the local hospital’s emergency room.
The admitting nurse went through the normal list of questions for patients who are about to be admitted. One of the questions asked how long it was since Sean last ate, his father told the nurse it was 1 hour ago. It was a very busy night and all the doctors were more busy than usual. When the emergency room doctor finally came over to Sean he asked about his symptoms. Sean presented with belly pain, nausea and vomiting. The doctor hurriedly looked over his admitting chart and moved on to the next patient. Sean was then taken in for an MRI (Magnetic Resonance Imaging), a standard exam for belly pain, nausea and vomiting. Before the MRI began Sean was administered a saline and valium drip, also part of the pre-test procedure. The purpose of the valium drip is to relax the patient, calm any nausea, and help relieve the anxiety of the MRI. As the MRI began Sean was already drowsy - exactly the way a patient should be before an MRI. Sean, groggy from the valium and his already weakened state, fell asleep. When he did he began to vomit. Because the upper torso was obscured by the MRI device the Operator was unable to see Sean’s face. If she could, she would have seen Sean vomiting. Several minutes later as the MRI concluded and Sean’s upper torso could clearly be seen, the Operator noticed he was non-responsive to her questions. As she went closer she noticed Sean’s hospital gown was full of vomit and he was not breathing. Calling a Code Blue doctors and nurses were around Sean within minutes, doing everything they could to revive him. Sean was eventually revived, but only after 3 or 4 minutes had passed without any oxygen intake. Once revived it was determined Sean had suffered a small amount of paralysis to his right hand and fingers due to oxygen deprivation. His dominant hand was his right. It was later learned the emergency room doctor had misread Sean’s admitting chart. He was rushing from patient to patient and the admitting nurse’s handwriting was rather sloppy. The doctor thought the answer to when Sean had last eaten was not 1 hour before, but 11 hours. It's well understood by the medical community that an MRI should never be performed unless the patient has fasted for at least 10 hours. The reasons are clear. Less than 10 hours and there is still food in the patient’s stomach. Food in the stomach plus an intravenous drip of valium and you have a recipe for disaster. If there is food in the patient’s stomach there is always a possibility that while sedated, the patient may aspirate (vomit) the food into his throat, effectively causing him to choke on his own vomit. The smaller the gap between the last time the patient had food and the injection of valium, the greater the possibility of vomiting. Sean was injured as a direct result of the negligence of the doctor and the hospital for which she worked. What follows are some general tips Sean's parents and attorney would use to negotiate with the doctor and hospital’s insurance company. You can also follow these tried and true strategies to help understand how negotiations work between injured victims and medical malpractice insurance companies. But again, in your own med mal case it's strongly advised that you seek the assistance of a licensed personal injury attorney. Here are some tips to help you negotiate a personal injury settlement: Tip #1 - BE PREPARED... Before entering into settlement negotiations you should be thoroughly prepared. Any decent personal injury lawyer is always well prepared. Make sure you have all your medical documents organized. Know what they are and how to access them immediately. Preparation includes requesting all medical records. To do so is not difficult. Every hospital and doctor has forms for release of medical records. In Sean's case, his biological parents have an absolute right to all documents, charts, memos, test results, and all other records in any manner related to Sean. A hospital or doctor's failure to release all records would be a direct violation of Federal HIPAA law (Health Insurance Portability and Accountability Act). Although it may be difficult, Sean's parents and attorney should try to visit with the admitting nurse and any orderlies or other personnel who saw Sean in the emergency room that day. Although the admitting nurse would be the most important witness, having the names of others who were present that day can only help. You might be surprised when a witness tells you something quite helpful, something you didn't know and may find useful to your claim. Tip #2 - DON’T LOSE YOUR COOL! The insurance company's representative is commonly known as a “Claims Adjuster.” Claims Adjusters are the front line for their insured and it's their job to work diligently to settle medical negligence claims for their insured. Speak with the Claims Adjuster as you would speak to any other professional. You want the Adjuster to take you and the negotiation seriously. Commanding her attention and respect will go a long way toward settling your claim fairly.
Tip #3 - DON'T GET “CHUMMY” WITH THE CLAIMS ADJUSTER... She is not your friend. Hopefully she will be polite and amiable, but be assured it's not for your benefit. She's probably learned from her training that being angry or mean during business hours not only does a disservice to the company, but it's bound to adversely affect her work output and her health. The Claims Adjuster is not your enemy, but she is also not your friend. Her job is to pay the least amount in compensation that will avoid a lawsuit. Do your best to treat her like any other professional and you should be fine. Tip #4 - SUPPORT FOR YOUR CLAIM... Speaking with the Claims Adjuster is the correct way to negotiate a settlement, but you must have something to speak with her about. You'll need evidence to substantiate your medical negligence claim. By evidence we don’t mean the type found in a courtroom, we mean anything which gives substance to your requests for injury compensation. This is where the work begins in earnest. The events leading to your injuries and the aftermath have obviously caused you and your family great suffering. That pain and suffering is compensable, but only for you (it's extremely rare that a family member can make a claim for pain and suffering). In our example, Sean and his family all suffered substantially, but the law in most states allows only the victim to be compensated for pain and suffering. His parents may however seek compensation for any costs related to Sean's injury and treatment, such as medications and any work pay lost from having to stay home to care for Sean. ------------------------ Continue with more tips on settling malpractice liability insurance claims. Return from Medical Negligence Claims to Medical Malpractice Cases Return from Medical Negligence Claims 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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