How do you even begin to come up with a fair amount to ask for in a medical malpractice suit?

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How do you even begin to come up with a fair amount to ask for in a medical malpractice suit?

My daughter went to the ER with a broken back, was sent back home and told to rest. After 2 days of so much pain she couldn’t take it anymore, she went back and ended up having to go to another hospital because her injury was so severe. She had a 5 hour long surgery to fuse 3 vertabraes together. She now has to sue the hospital but she is not allowed to consult legal advise until she comes up with a number. This happened on a military base in a different country.

Asked on December 17, 2014 under Malpractice Law, Maryland


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

As a general matter, you start with the most you could possibly get, if you sued and won, and then reduce it by around 40 - 60% since you almost always accept less in a settlement for various reasons:

1) When you settle before trial, you save alot of money on legal expenses, so you can afford to take less;

2) Settling before trial, you get the money months or often years earlier, and getting the money faster has a real economic value;

3) If you settle, you are guaranteed to get paid--whereas if you go to trial, you could lose (even the best cases lose sometimes) or just get less than you hoped;

4) The incentive for the other side to settle is that they will pay less than if they lose at trial--the opportunity to save money and pay less is what encourages them to settle.

In terms then of figuring out the maximum you could get if you went to trial and won, add up:

a) The *additional* medical expenses caused in this case by the failure to diagnose her correctly immediately. If she had a broken back, medical costs would been accrued even with a prompt and accurate diagnosis. What the misdiagosis may have done is increase those costs, by allowint extra damage to occur during those two days. Whatever those additional costs were--both paid to date and prospective future (and including prescriptions as well as therapy, in addition to surgery, tests, X-rays, etc.) could be recovered.

b) Additional out-of-pocket costs for her (if she was an adult) or her legal guardians (e.g. you) if she is minor due to the delay--such as if you had to take more time off from work and lost income due to the misdiagnosis.

c) "Pain and suffering" if the misdiagnosis and delay caused some additional long-lasting (weeks or more) impairment, disability, or loss of function than she would have had if she had been diagnosed properly immediately--such as if, for example, she will, due to the delay, have some restricted motion in her back, residual weakness, and/or some frequent or constant pain. A pain and suffering award is typically anywhere from 1/2 the medical costs to 2 - 3 times the medical costs, depending on severity, duration, etc.

d) Lost future earning potential, if this (the misdiagnosis or delay) will restrict or disable her from work to some degree.

Add up a) - d), then be prepared to settle for around half, give or take, of that number if you can settle ahead of trial.


IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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