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What Makes A Case Worth |
Why is it that two seemingly identical malpractice cases that feature the same injury and basic facts are closed for vastly different amounts? For example, why does one failure to diagnose breast cancer claim end in a $300,000 settlement or verdict payment, while another results in a $900,000 payment?
While there are several variables that affect the claims evaluation process, some of the basic issues include the following:
1. What occurred in the claim and why various events happened? This concept is linked to the clarity or the certainty of the deviation alleged against the insured physician, ranging from clearly splendid care to rather reprehensible actions on his or her part.
2. The image of the insured physician. This includes physical attributes, demeanor, ability to communicate, warmth and apparent concern for the patient, among other factors.
3. The plaintiff’s image. Is he or she compassionate or irritating? What is his or her ability to communicate (although this is less important in a plaintiff than insured)?
4. The emotional impact on the jury. Is there an amputation, loss of organs, physical scars or a compassionate family to sit at the plaintiff’s table? Additional considerations include the length of time that a person would have to live with the residual injuries; in a consortium claim, the number of lineal heirs, the age of any children, the age of the remaining spouse or the length of any marriage.
5. The jurisdiction. Most areas have developed a general market value for each type of case based on anticipated judicial rulings, the potential jury pool and the value that juries in that venue place on a similar case.
6. The ability of the defense attorney versus the ability of the plaintiff’s attorney. There often is competition in the plaintiff’s bar to ensure that their settlements or verdicts are at least equal to the competition to protect their referral network. Moreover, the defense attorney must maintain the respect of the plaintiff’s attorney as someone with excellent trial ability and a willingness to try a less than perfect case.
7. The ability of the professional liability analyst as a negotiator. Negotiations are as much an art as a science. The timing and tone of offers, knowing when to present a firm fact and when to seek accommodation, having the proper body language and voice tone as well as strong logical arguments are just some of the elements involved.
8. The timing of negotiations. This can affect values because in some cases, the lowest value on the case is right after the suit is filed. With other attorneys, the lowest value on the individual case will be on the courthouse steps and any attempt to negotiate then would be non-productive.
9. The causation defense. Regardless of the breach of the standard of care, ISMIE can sometimes use the argument that the deviation caused no injury to reduce the value of a case, or in some cases even to win a defense verdict outright.
These are but a few examples of the factors that impact the outcome and worth of a claim. At ISMIE, we understand the vagaries of the judicial system, through experience gained over 23 years. That is why within 24 hours of being notified of a new claim, ISMIE contacts the policyholder to set up a meeting to plan strategy. Policyholders can expect the best possible effort by ISMIE on their behalf.