Determining Merit - Just One Piece of the Puzzle

Some LNCs may not understand why determining merit is not enough to go forward with a case.  Determining merit in a medical malpractice case is only one piece of the puzzle.

1.    Caps - This does not refer to nursing caps or other headgear.  Caps limit the recovery of damages that a victim of medical malpractice may be entitled to under medical malpractice laws in some states.  Caps may be placed on both economic damages, such as lost wages and medical expenses, and non-economic damages such as pain and suffering and physical disfigurement.  In TN, where I live, there are caps of $750,000 for non-catastrophic cases.   Think of our most severely injured patients who have lost one or more limbs, or suffered paraplegic or quadriplegia in a catastrophic case.  The cap on these catastrophic injuries is $1,000,000.  Think of how expensive converting a home is to accommodate the needs of a para or quadriplegic patient.  In addition to re-fitting the home, there are costs of wheelchairs, specialty beds, support services such as PT, home health, and other continuing medical needs.  How long do you think $1,000,000 will last?

Even if the catastrophic case does not go to trial, caps on medical malpractice damages also affect the settlement value, because no insurance is going to pay more than the amount of the cap.  Most likely the defense (insurance company) will offer much less in settlement agreements than the cap knowing that the plaintiff's attorney will only receive a percentage of the damages award and that the plaintiff's attorney will have to pay a lot of expenses if he goes to trial, with no guarantee that he will win.

An additional consideration is how likely is the attorney to win the case.  He must determine the strengths and weaknesses of the case for both the plaintiff and the defense.  Who has the better case?  If the surgeon performed an amputation on the wrong leg, it may be a very strong case.  If the patient required leg amputation because he developed necrotizing fasciitis following injury in an ATV crash. Professional negligence may not be as clear.

2.    Venue - The venue is where the medical malpractice trial will take place.  Let’s just say that if I determine a case from a certain county of Alabama has merit and negligence is clear, one of my attorneys will groan, “No.” Because the venue is a rural and conservative county the citizens love their physicians.  It is very difficult to get a plaintiff’s verdict in that county and settlement offers are always low.

 3.    Potential jury -  How will the jury respond to the plaintiff’s client?  Will the jury see the client as honest and sincere? Or will the client be viewed as angry, bitter, and disagreeable?  What about the defendant physician or nurse?  Will they be viewed as believable, approachable, and even remorseful? Or will they be perceived as angry, arrogant, and defensive?

 4.    Research - Another way an attorney determines the value of a case is by researching like cases in their jurisdiction or a like jurisdiction in a neighboring state. This research may provide a range in settlement values only.  No two cases are alike and no two juries are alike.

 5.    Focus groups - Lastly, some attorneys use focus groups made up of individuals who are similar to the expected jury pool.  The case is presented to the focus group including the facts, the alleged claims against the defendant, and possible defenses. The focus group serves as the jury and provides feedback on the strengths and weaknesses of the case, their verdict in the case, and even a suggested award amount.  Focus groups provide great insight into potential case strategies.

 LNCs play a vital role in the litigation process, but there are many more pieces to the puzzle before the decision is made to take a case to trial.