Malpractice: When to Settle a Suit and When to Fight

Neil Chesanow


September 25, 2013

In This Article

Other Reasons to Settle

Factors over which you have no control can jeopardize your case and be reasons to settle. The composition of the jury, for example. Or the jurisdiction in which the trial will be held. In conservative districts, the doctor may have an advantage, McMenamin says. In liberal ones, the patient may have an edge.

Recent decisions by your state supreme court on issues pertaining to your case can play a role as well. "Has the court been going the wrong way or the right way from your point of view?" McMenamin says. "Say you lose and have the case taken up on appeal. Whatever the court has been looking at in cases like yours has a direct impact on how your appeal is decided."

The reason is self-protection: Just as you have a reputation to protect, so does the judge trying your case.

"Just as lawyers hate to lose cases, trial judges hate to get reversed," McMenamin says." The trial judges read the reports from the state supreme court. They know which way the wind is blowing, and they don't want to be the first with a contrary ruling. If they get the sense that the supreme court judges in your state are looking at a particular fact pattern or problem in a certain way, then because they don't want to get reversed, they will tend to look at it in much the same way themselves, if they can."

If the fact pattern in your case is one in which your state supreme court tends to side with the plaintiff, even if you should win, the plaintiff has a good chance of ultimately triumphing on appeal. If, on the other hand, you lose your case, your request for appeal may be denied or you may lose that verdict.

"There isn't just one variable in this equation," McMenamin says. "There are dozens."

The National Practitioner Data Bank

Never far from the mind of doctors with a malpractice suit hanging over their heads is the stain on their records that will appear in the National Practitioner Data Bank (NPDB), which records any settlements or judgments against you.

The NPDB was created as a federal repository of information on healthcare providers in the United States.[5] Implemented in 1990, it requires reporting of adverse licensure, hospital privileges, and professional society actions against physicians and dentists related to quality of care. In addition, the NPDB tracks malpractice payments made for all healthcare practitioners.

"Doctors make a decision to settle or fight not just on whether they are liable for damages but also on what will happen if they take the easy way out and settle out of court," says internist Eric E. Shore, DO, JD, founding member of the Shore Legal Group in Bala Cynwyd, Pennsylvania. "Unless you win, whatever happens will go in the data bank. If you go to court for a case that could have been settled for $5000, even though you didn't do anything wrong, you have a good chance of walking away with a defense record."

But even a measly $5000 settlement appears in the NPDB, a prospect that sparks outsized fear in doctors. "What does it mean to be in the data bank?," Shore asks. "It just says, 'Settlement: negligence.' One or 2 lines." If there was injury to the patient, the doctor is entitled to add his own entry explaining it."

You may add a 4000-character statement that informs queriers, such as hospitals, insurers, and state licensing boards, of your side of the story.[6]

"But with a relatively small settlement, it doesn't make much difference," Shore reflects. "If someone has 5 lawsuits that money was paid out for over 25-30 years, that won't get anyone really upset. But 5 lawsuits in the past year would raise questions."


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