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To Settle or Defend
Editor's Note: When trying to make a reasoned decision about whether to settle or defend a medical malpractice claim, there are a number of things that should be taken into account. In this regard, author Kevin Quinley offers eight factors to consider, four of which were addressed in last month's newsletter: the defensibility of the physician's adherence to the standard of care; the scope of damages; the potential for uncovered damages; and the plaintiff sympathy factors. He concludes his discussion herein.
5. Court venue. Medical malpractice litigation is like real estate. Location matters. Is the case in state court or federal court? A defense bar perception is that the caliber of judges is higher in federal court than in state court. Many state court judges are elected. Often, the risks for defendants are considered higher in state courts. Moreover, not all jurisdictions are created equal in terms of jury trends and demographics.
There are certain areas that defense lawyers consider “tort hellholes.” (Some legal groups publish annual “Top Ten” lists of areas most prone to high civil damage awards.) Examples: South Texas, East St. Louis and South Florida. The physician should ask defense counsel what he or she knows about the court venue and its jury tendencies. Moreover, as trial becomes likely, ask the insurance company to conduct jury verdict research to assess trends in comparable cases. If it looks like the case will likely go to trial, suggest that it convene focus groups to beta-test defense themes as an evaluation tool.
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