What if the hospital has already expressed an interest in settlement? Every now and then a hospital (rarely a doctor) will approach a family and offer to make a quick settlement when there has been a fairly obvious mistake causing an injury. Hospitals love it if a patient will negotiate and settle with them without retaining a lawyer. They will often even tell the patient, “don’t get a lawyer because he will just take part of your money.” Here are three good reasons why you would still benefit from retaining a lawyer:
1) Every malpractice case is unique and the value depends on a detailed analysis of all elements of liability, causation, and damages. The hospital is very experienced in analyzing and handling malpractice claims and settlement negotiations. Its representatives know what your claim is really worth, but you do not. This creates very unequal negotiating positions and makes it hard for you to negotiate for fair value. The responsibility of the hospital’s claims adjuster is not to pay fair value, but to pay the least amount they can get away with. A lawyer on your side will help you determine the true value of your claim and ensure you are not taken advantage of.
2) If there is any discount on the settlement value because you don’t have an attorney, the hospital wants it . In other words, while you are the one who is unrepresented and exposed to several downside risks, the hospital will want to reap the economic benefit of you being unrepresented. They will want to pay you the net settlement value deducting what you would have paid to a lawyer if you had hired one.
3) In most cases, at least in Florida, there are complicated liens against your settlement proceeds by entities like Medicare, Medicaid, HMOs, or any other private group health insurance companies which have paid for your medical care. The rule is that if they paid for your medical treatment that was caused by a negligent healthcare provider, and you collect money because of it, you have to pay back all or part of the money they paid out for your treatment. Failure to pay back some of these liens can actually be a crime. A lawyer can help you figure out BEFORE you settle the claim if there are any such liens and what the amount is that must be repaid. That way you will know if you need to raise the amount you are willing to accept in a settlement, in order to handle these liens and still net the same amount from the recovery. A malpractice lawyer is normally experienced in techniques for handling these liens, and either eliminating them entirely or at least minimizing the amount which must be paid back. So by retaining a lawyer you will be in a better position to know what you will truly net out of any settlement before you agree to accept it, and you will have professional help after you have settled in reducing or eliminating these required paybacks.
What if I want to represent myself in court?
The doctor or hospital will hire a team of top-notch lawyers who specialize in defending medical malpractice claims. The defense will normally pull out all the stops to fight your claim. Knowing you are not a lawyer, the defense will spend extra time trying to get the case thrown out on procedural technicalities with which you are unfamiliar, rather than defending the case on the true merits of your claim. If you miss one small procedural or evidentiary step along the way, your suit could be forfeited. You very well may end up with a judgment against you for the attorneys’ fees and expenses incurred by the other side in fighting your claim.
There is a wise old saying that if a lawyer represents himself in a legal matter he has a fool for a client. If it is true that a lawyer should not represent himself in a legal case, then it should be even more obvious that a lay person should not.