Should an ED Suit Be Quickly Settled — or Vigorously Defended?

Agreeing to settle a plaintiff's claim alleging ED malpractice may not sound like a good idea to the emergency physician (EP) named in the lawsuit, but, in fact, this course of action is often in everybody's best interest.

"In general, a reasonable settlement reduces risk, and would be preferable to a jury trial," says Michael M. Wilson, MD, JD, principal malpractice attorney at Michael M. Wilson & Associates in Washington, DC. "Nationally, approximately 80% of cases tried to a jury result in defense verdicts."

Typically, the EP has a limited amount of coverage, of $1 or $2 million, for example, says Wilson, so a large verdict for a catastrophic injury could force the EP into bankruptcy, causing the loss of most of the EP's accumulated assets.

"The hospital is typically self-insured, or has a relatively small insurance policy compared to the value of its assets," adds Wilson. "The hospital could lose its assets if it were to be found liable for a catastrophic injury."

Generally, a fair and reasonable settlement is in the best interest of all parties, says Wilson. "This is why most cases are settled," he says. "For example, in the U.S. District Court for the District of Maryland, fewer than 1% of personal injury cases proceed to trial."

Under some circumstances, the EP can be reported to the National Practitioner Databank, says Wilson. "However, this would have fewer ramifications than a large public verdict followed by a personal bankruptcy," he adds.

When to Settle?

ED lawsuits sometimes settle after all of the witness depositions and expert depositions have been taken, says Robert D. Kreisman, JD, a medical malpractice attorney with Kreisman Law Offices in Chicago, but it is often expedient and prudent to settle claims or cases before they reach that level.

"One of the principal reasons is the expense associated with discovery, the hiring of experts, and the risk that the outcome may not be favorable to the ED physician or hospital," says Kreisman, adding that each case is unique and must be carefully analyzed.

"Furthermore, the damages that are being claimed have to be understood," he says. Because of the expense associated with prosecuting medical negligence cases of any kind, he explains, the damages to the patient are usually very significant, as someone is either injured severely or is deceased.

A plaintiff's lawyer would recommend that a case be settled when he thinks that the client would be reasonably taken care of over his or her lifetime, says Wilson, assuming a catastrophic, disabling injury, and that the amount to be paid would be reasonable considering the strengths and weaknesses of the case.

"In some cases, problems with the plaintiff's case do not permit a settlement that would cover all of the plaintiff's future needs," says Wilson. "Under these circumstances, the goal would be to obtain the highest settlement possible."

In catastrophic injury cases, a Special Needs Trust may be set up that accepts the settlement proceeds, and pays it to the plaintiff under a plan approved by a judge.

The main advantage of the Special Needs Trust is that the plaintiff would remain eligible for Medicaid payments, says Wilson, with the settlement proceeds supplementing Medicaid.

"The Special Needs Trust makes settlements attractive to both plaintiffs and defendants," says Wilson. Plaintiffs would otherwise be viewed as ineligible for Medicaid, and would need a very large amount to cover all of their needs for the remainder of their lifetimes without Medicaid contributions, he explains.

"For defendants, the case can be settled for much less than a jury would award if the plaintiff were to win at trial," says Wilson.