Anyone injured by substandard medical care might file a medical malpractice claim against a doctor or other health provider. However, the actual lawsuit doesn’t really involve the medical provider at all. Instead, their insurance company steps up and handles most of the negotiation, litigation, and fact gathering. In fact, you probably won’t even speak to the doctor at all.
At Powers & Santola, LLP, our legal team has successfully obtained compensation for many patients injured by medical errors. In this article, our New York medical malpractice lawyers explain the role of the defendant’s insurer in the case. We hope this clarifies what you can expect moving forward with your claim.
Medical Malpractice Investigation
Once you file a claim, the insurance provider will take the lead on fact gathering. This investigation includes:
- Asking you questions about your physical and emotional health.
- Asking for additional medical records, such as evidence of corrective surgery or time in the hospital to heal from the malpractice.
- Interviewing nurses, orderlies, and others about your treatment.
- Getting the doctor’s side of the story about what went wrong.
- Inspecting the hospital, clinic, or nursing home involved in the lawsuit.
You might imagine that an insurance company should adopt an “objective” point of view. Unfortunately, many of them act as advocates, even during the evidence-gathering phase. For example, they might neglect to interview someone with direct knowledge of the care you received, or they could fail to ask for your medical records to fully grasp the severity of your injuries.
They might also ask you intrusive questions to get you to admit that you didn’t take medication as prescribed. Or they might question whether you have attended rehabilitation as recommended. In short, they are trying to find evidence that you are at least partially at fault for the pain you feel.
For this reason, you need to hire your own attorney very soon. At Powers & Santola, we also take an active stance in evidence collection. We don’t wait for the other side to find all the information. We can also interview nurses, visit hospitals, and gather relevant information for your claim.
Expert Witness Analysis
A major part of any medical malpractice case is uncovering the accepted standard of care. This standard refers to the skill and care a provider should have used when responding to your condition. For example, if you were experiencing very high blood pressure during labor and delivery, a doctor should have tried to uncover the cause and give appropriate medication to prevent stroke. A doctor would not follow the correct standard of care if they simply ignored your symptoms.
We can’t rely on the defendant to tell us what the correct standard of care is. Instead, each side will hire an expert witness who should be neutral. Unfortunately, many malpractice insurers use the same experts over and over, and these experts tend to conclude that the doctor did nothing wrong.
Contact our law firm. We also have a network of experts we can lean on. These leaders in the field will review the treatment you received and offer an opinion about whether it was adequate.
Medical Malpractice Negotiation
Many insurers like to settle cases outside of court because they are afraid of a jury awarding our clients a massive verdict. By settling, these insurance companies at least have some control over what they pay.
You will not hear from the defendant during negotiation—the insurance company takes the lead. The doctor is not paying the settlement out of his or her pocket, so they have little say over whether the case settles.
As you can imagine, insurance companies will try to get you to accept a low settlement. That helps protect their bottom line. Any initial settlement offer will likely be meager and not remotely fair. Avoid accepting any settlement offer without talking to a lawyer first.
We work with our clients to develop a comprehensive negotiation strategy. We carefully analyze how much you might receive. We have handled so many cases we know insurers are not being upfront when they claim a lowball offer is “all they can offer.”
Litigation
Medical malpractice litigation begins as soon as you file a lawsuit in court. An insurer will either use their in-house lawyers or hire an outside law firm to help them defend the claim. Because the insurer will pay any settlement or verdict, they basically call the shots when it comes to litigation strategy.
Litigation is a long process. It can include:
- Discovery. Fact gathering can begin even before you file a lawsuit But once filed, there is a formal process for gathering evidence called “discovery.” Each side can request the production of documents and ask that witnesses answer questions under oath, either in writing or in person. As your lawyer, we also use these discovery techniques to build a case.
- Pretrial motions. The defense might try to get a judge to dismiss the case soon after it is filed, or again after discovery ends. Essentially, they ask the judge to agree with them that you have no case.
- Trial. The insurance company will decide whether to settle or take a case to trial. They use many factors as part of their analysis, such as the strength of your evidence and the severity of your injuries.
- Post-trial motions. A case doesn’t end even after the jury renders a verdict. Instead, the insurance company might ask a judge to set the verdict aside, or they will file a notice of appeal.
Although the insurance company calls the shots, we tend to have most contact with their legal counsel during the litigation phase. Be mindful that your case can still settle—even while a trial is taking place!
We Know Most of the Big Insurers in New York
The lawyers at Powers & Santola, LLP have sat across from many of the biggest insurers in the industry. We know how they negotiate, and there are few surprises. You need an experienced New York medical malpractice lawyer to represent you, so call us to schedule a free consultation about your case.
