Posted by John Ager on 24 February 2014.
The ultimate question in any medical negligence case is “What’s it worth?” So how do you value a medical malpractice case? The answer is “It’s complicated.” I am hired to obtain a sum of money which fairly compensates those who have been harmed by a medical error. What is fair, however, can only be determined in view of the host of facts and circumstances in any situation and is different in every case, even when similar harms are involved. My clients rely on me to accurately assess the value of their medical negligence claims so they can make informed choices about the relative risks and benefits of settling a case where possible and going to trial, if necessary. Unfortunately, there is no magic formula, but I believe the following considerations should play a significant role in any assessment of value.
Medical malpractice cases are more difficult than most other types of personal injury cases for many reasons that we have discussed in more depth on this blog previously. For example, physicians and other health care providers hold an exalted place in our society and juries tend to set the bar for recovery against them higher than those involved in ordinary negligence cases. In Arizona, juries side with defendants in medical malpractice cases about 90% of the time. Physicians also can refuse to allow their insurance companies to settle a case, forcing them to trial, even if a plaintiff is willing to accept significantly less than what the case is worth. Medical negligence cases are complicated and expensive to litigate, often involving multiple experts. And, a plaintiff can be exposed to significant personal liability for the costs a defendant incurs in a lawsuit if the defendant prevails. This backdrop should be the jumping off point and touchstone for the valuation assessment in every medical negligence case.
It has been said that a case is worth what a jury says its worth. However, this overlooks the reality that most cases are settled. The settlement value of a case is different from a verdict. It is what a jury likely would find the value of the damages to be, minus the value of the risk that the jury will award nothing at all in view of the relative strength of the liability claims and other value driving issues. When all parties accurately solve this equation, a case should settle. If one or more parties get it wrong, the case goes to trial.
In assessing what a jury is likely to do, one of the first and most important questions that must be asked is “Will they like my client?” Jurors are ordinary people. Like ordinary people, they are not going to want to help someone they don’t like. Jurors might not like someone for any one of a variety of reasons from personality issues to specific instances of conduct. This is not lost on defense lawyers who will know everything about a party and have a pretty good idea how that person will present to a jury after deposing them. While an unlikable client may not be fatal to a case, unless the case is otherwise exceedingly strong, a case brought by someone who will turn off a jury is lost before a lawsuit is ever filed.
A corollary to this inquiry is “Will a jury want to help my client?” Not if they dislike him or her, but there is more to it than that. The harm suffered needs to be something the jury can help fix. A jury only has the power to award money damages. Jurors will ask whether money will help fix the harm that has been done – will it make a difference – and how much will it take? For example, in a wrongful death case, some jurors will want to award nothing, regardless of fault, because they deeply believe that no amount of money will make a difference because it won’t bring a loved one back to life. Jurors will also react differently to an injury that can’t be seen than they will to one that can. Some jurors will not compensate the victims of emotional or cognitive harm as readily as other injuries, like paraplegia, because the harm is not readily apparent. The better a jury is able to identify a harm they can fix, the more value they will assign to the claim.
Another important question is how apparent is the fault of the healthcare provider? In medical negligence cases, a plaintiff must prove that a healthcare provider’s treatment fell below the standard of care. That means the health care provider had to act unreasonably. This can be difficult because a bad outcome does not always mean someone did something wrong. Of course, operating on the wrong leg does not leave much room for debate but rarely is a deviation from the standard of care so cut and dried.
Once a plaintiff demonstrates a breach of the standard of care, he or she must prove that breached caused harm. Even when a healthcare provider makes a mistake, something bad may have happened anyway. Unless a jury concludes that a medical error, and not something else, caused a poor outcome, the defendant wins.
Expert testimony is required to establish both a deviation from the standard of care and causation, adding yet another element of uncertainty to these issues. Experts are sized-up by the jury just like claimants. A poor expert, or one the jury does not like, can ruin an otherwise strong case. Even where a plaintiff has reputable, likable experts, the defense experts may be equally impressive. When this happens, juries tend to view it as a toss-up and ties go to the defendant.
While these considerations provide a broad basic framework for the overall assessment of value, each case is unique and its value is affected by its own unique set of circumstances. So what tools does a lawyer have to assess value? The first three are experience, experience, and experience. Until a lawyer has tried many cases, and litigated many more, he or she will not be in a position to appreciate how all of the pieces of a medical negligence case fit together and the many complex nuances that must be considered to arrive at an appropriate valuation. Another tool is case reports. All civil cases tried in Arizona are digested and reported. These reports give lawyers a birds-eye view of what juries are doing and can be used to get an general sense of value, but not to pinpoint a value based on a particular verdict or set of circumstances. This reminds me of a mock trial I observed which was held before two juries simultaneously. At the conclusion of the trial, the juries deliberated separately. One came back with a defense verdict. The other found for the plaintiff and awarded punitive damages. While the results were extreme, it is a lesson that trial are always uncertain. Focus groups are another way lawyers can gauge the strengths and weaknesses of the themes and facts of a case which affect value.
Case value is a moving target. One of my former partners used to say cases get better and they get worse, but never stay the same. It’s important to assess the risks and value of a case appropriately so clients can make reasonably informed decisions about whether to settle, if the opportunity is presented, or go to trial. In the end it’s a judgment call, but if the case has been properly evaluated, the judgment of value should reasonably approximate what a jury would award minus the value of the risk that it awards nothing at all.