The gist of this question is whether you can get a settlement without filing suit or, at least, without taking a case all the way to the jury.
The short answers are “almost always no” to the first part, and “frequently yes” to the second part.
It’s sometimes hard for people to understand why defendants won’t pay up when they did something to a patient that was clearly wrong. I think I know why that’s the case, though.
I started my legal career at a large law firm that defended hospitals and doctors. Before that, I was a hospital administrator. From those experiences, I’ve realized that most insurance adjusters, hospital representatives, and defense attorneys consider it safer for their careers to force victims to jump through all the hoops before they’ll even consider paying anything, let alone any serious amount of money to compensate plaintiffs for injuries.
Even though it might not be better for the big picture, it’s at least better for the individual defense employees and attorneys making settlement recommendations and decisions to have files chock full of documents showing all the work that they did to defend a case. If they settle too quickly—they think—some higher-up may question why they gave too much money away.
My approach to handling Texas medical malpractice cases is to invest all the time and resources necessary to show the defendants that we’ll jump through the hoops—and excel at doing it. This starts with having the proper medical experts, suing the proper defendants, conducting the right discovery, and collecting all information and documents to prove the full extent of the plaintiff’s damages.
In most Texas medical malpractice lawsuits, the defendants are ready to talk about going to mediation and work toward a settlement about four to six weeks after the plaintiff’s depositions are complete. This is typically about 30 to 60 days before trial.
With that said, there are occasional cases where the liability (fault) of the defendant hospital or doctor is so crystal clear that they’ll try to settle early. This happened recently in a case, where just after we produced reports from our preliminary experts—one of those early hoops plaintiffs have to jump through—the other side called and said, “Let’s mediate and try to settle this case.”
Even in that situation, though, I took a few months to collect evidence, bills, and economic projections so we could prove the full measure of the plaintiff’s harms and losses. We ended up settling that case for $1.3 million just months after filing it.
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Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas.