Since many legal settlement agreements include a secrecy clause, it can be challenging to spot trends in medical malpractice litigation.
Medical researchers have noticed certain distinct patterns.
Trends change over time, but one thing never changes: it is always helpful to have a skilled medical malpractice attorney on your side.
Here are the emerging trends in medical malpractice litigation.
More Stalling
Defendants want to delay, and as plaintiffs’ attorneys, we want to settle cases as fast and effectively as possible.
This is a common rule in all personal injury litigation.
In cases involving medical malpractice, this is much more true.
The explanations are rather straightforward.
First, fewer defense suits are being filed.
Defense attorneys will therefore try to get as much time out of a case as possible because they have less work to complete.
More duplicative experts will be hired, more treating physicians will be deposed, and more pointless documents will be ordered.
Some carriers try to call the defense attorneys back because they are interested in this.
Others are eager to do this, but they are unable to effectively oppose the defense attorneys due to the nature of the attorney-insured-insurer connection.
No matter the situation, this is happening more often.
However, as the plaintiff’s attorney, there are several things you can do to counteract this delay technique.
With a reputable medical malpractice attorney in Atlanta by your side, you can ensure that justice is served.
Additional Blame Shifting
Defense lawyers were once strictly trained never to blame co-defendants, a principle so deeply ingrained that it was nearly sacrosanct.
However, the landscape has changed dramatically.
Disputes among defendants in high-value cases have become almost inevitable, often consuming substantial time and delaying case resolutions.
These days, carriers and their attorneys show little hesitation in initiating conflicts with fellow defense counsel.
The increasing value of cases heightens the financial exposure for carriers, making such disputes more frequent.
In medical malpractice cases, joint and several liability holds particular importance for plaintiffs’ attorneys due to the MICRA cap of $250,000 on general damages, making economic damages the primary target.
To mitigate costs in high-stakes cases, carriers seek opportunities to shift liability onto other defendants.
Litigation Costs Are Rising
This trend impacts every kind of personal injury case.
Court reporters and trial technology are becoming more expensive, and filing fees are still going up.
The cost of prosecuting personal injury lawsuits has increased in many respects, but one important component makes the problem more noticeable in medical malpractice cases: expert witnesses.
Experts are crucial in every medical negligence case, but they also play a part in almost all personal injury trials.
To prosecute these cases successfully, several specialists are usually needed.
Due to their intricacy, highly skilled experts are sometimes required.
This makes their prices more and more expensive.
Many professionals charge more than $1,000 per hour.
This happens most in highly specialized specialties like interventional neuroradiology and vascular neurosurgery.
Denial of Joint and Several Liability
It’s astonishing that this issue even needs to be addressed, yet it does.
In high-exposure cases, it’s become common for hospital defense attorneys handling the latter stages of a case to refuse to pay, arguing that it’s a “doctor case”, meaning the physician bears the majority of the liability.
This stance is completely illogical; as the plaintiff’s attorney, if you have a viable theory and a qualified expert supporting the hospital’s negligence, then the hospital often carries significant liability under joint and several liability laws.
This is especially prevalent in birth injury cases, where the responsible physicians are frequently underinsured.
Despite the law, some stubborn defense attorneys persist with this unreasonable argument during settlement negotiations.
As the plaintiff’s counsel, hold firm, don’t concede to this tactic.
They will eventually relent, and if not, you can take your case to trial against the party with deeper pockets.
Strategies for Countering Defensive Tactics
These cases present significant challenges, even for the select few attorneys who focus exclusively on medical malpractice.
However, a highly successful practice can be built by consistently applying a few key strategies almost algorithmically in every case:
- Select stronger cases: In the past year alone, over three thousand case inquiries were received, yet only eleven were filed. The guiding philosophy is to take only those cases that appear nearly impossible to defend. Success can come just as much from rejecting weak cases as from accepting strong ones.
- Prioritize transparency: Defense attorneys and insurance carriers respond most effectively to openness. If a case has merit, present it clearly, and avoid withholding key information. Encourage informal discussions with experts, provide damage reports early, and articulate case theories in detail. By offering all necessary information, carriers are more likely to assign fair value, as it allows them to justify their decisions internally. Making it difficult for them to deny a claim increases the likelihood of a favorable resolution.
Endnote
Medical negligence lawsuits are fascinating and can be financially and emotionally rewarding, despite their difficulties.
You are speaking on behalf of regular people who have experienced a betrayal of confidence by their healthcare professionals due to circumstances beyond their control.
You can bring about justice for them by applying your trial lawyering expertise and a little perseverance.
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