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Valuing Medical Malpractice Cases by Injury Type

Medical malpractice plaintiffs want to know how much money their medical malpractice case is worth. Victims understandably want an estimate of the potential trial and settlement value of their case.

This article is about how malpractice insurance companies, judges, juries, and lawyers value medical malpractice lawsuits. We give you real information to help you better understand the range of potential payouts you might receive in a verdict or settlement if you are suing for malpractice.

The first step in your research to better understand the settlement value of your malpractice case is to look at comparable cases.

We cover virtually every possible malpractice case below and have updated most of these pages in 2020:

Is There a Medical Malpractice Settlement Formula?
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Victims of medical errors are entitled to damages. Because courts cannot undo the negligence, the only method they have to “fix” the negligence is to compensate the victim with money.

From our perspective, this serves important purposes. First, it helps the victim to make his or her life better—sometimes money is needed for future therapy, surgeries, or even adaptive equipment. Second, people who cause harm should have to pay because, if they didn't, there would be less of an incentive to avoid causing injury.

The average payout of a verdict or settlement in a medical malpractice claim nationally is approximately $242,000. (Miller & Zois' average is easily more than triple this national average.) But, average malpractice settlement is not very helpful. You want to know know what your case is worth. How do lawyers, insurance companies, judges, and juries arrive at a money award or settlement in malpractice injury and wrongful death cases?

What Is the Average Value of a Medical Malpractice Lawsuit?

The average settlement value for a medical malpractice lawsuit in the U.S. is somewhere between $300,000 to $380,000. The median value of a medical malpractice settlement is $250,000. The average jury verdict in a malpractice cases won by the plaintiff is just over $1 million. The value of an individual case will vary greatly depending on what state its in and the severity of the plaintiff’s injuries.

What Percentage of Medical Malpractice Cases Settle Out-of-Court?

Around 90% of all medical malpractice cases end in some type of out-of-court settlement. Only 10% of medical malpractice cases are resolved by jury trial. For those cases that do end up in a courtroom, the plaintiff only wins about 20% of the time. (This is not our experience.  Miller & Zois has won many more malpractice cases than we have lost at trial.) This means that around 3 out of every 4 plaintiffs who file a medical malpractice case, end up getting money.

How Long Does It Usually Take for a Malpractice Case To Settle?

The average length of time between the filing of a medical malpractice lawsuit and the time that the case gets resolved (usually by out-of-court settlement) is 28 months. Most settlements occur after the discovery phase ends and before the trial is scheduled to start.

What Percentage Does the Lawyer Get for a Malpractice Case?

Medical malpractice lawyers work on a contingent fee basis. This means that they receive a percentage of whatever money they recover on your behalf. A typical contingent fee percentage in a malpractice case is 33% if the case ends in settlement and 40% if the case goes to trial. In addition to their percentage fee, the lawyer typically also gets to collect the expenses they laid out for the case when a medical malpractice was is won. In medical mistake cases, the expenses can be $100,000 or more because of all the expert witnesses.

Malpractice Settlement Formula

The formula to determine how much money (value) to provide to a victim of medical negligence or the victim's family in a wrongful death/survival action claim is this:

Value = Economic Damages (past & future) + Noneconomic Damages (past & future)

That is the value that a jury places on your verdict. If you are calculating settlement value, you have to consider the possibility that a jury might find against you. So you multiply the value by your chances of success at trial.

Of course, the difficulty is figuring out what numbers to use in the formula. That is the challenge.

Economic Damages

You may be compensated for your existing expenses and losses as well as those you expect to have in the future

Economic damages are calculated with near-exact certainty. Items included in non-economic damages are:

  • Past and future medical and therapeutic expenses, including surgeries
  • Past and future lost wages
  • Past and future adaptive devices like prosthetic limbs, medical devices, and wheelchairs
  • Past and future medication

Items of past damages are the easiest to calculate because there are bills or receipts. For items of damage in the future, it more difficult because no one can be sure of the future. New technology or advances in medical techniques may make a planned surgery obsolete. Or, health care costs may skyrocket above inflation, rendering these costs more expensive than planned. In catastrophic cases, the best medical malpractice lawyers hire an economist to determine the present-day value and the real value of a lifetime of care. 

Non-Economic Damages

Non-economic damages are things that cannot be precisely calculated. Maryland allows non-economic damages for harm such as past and future pain, suffering, mental anguish, disfigurement, and inconvenience. It is very tough to know how any particular judge, jury, defense lawyer, or insurance adjuster will value non-economic damages. Lawyers should look to recent settlements and verdicts for similar types of cases for guidance (provided above) and consider any cap on non-economic damages.

Damage Capsdamagemalpractice

One important component in Maryland medical malpractice lawsuits is the damage cap. Maryland limits the amount of money that a victim of healthcare negligence can receive for non-economic damages. A plaintiff can receive any amount of proven economic damages. So there is no cap on hard costs. But judges will reduce a jury’s verdict for non-economic damages to the maximum amount allowable by law. The amount of non-economic damages recoverable is determined based on the year of the negligence. Click here to see a chart on Maryland’s non-economic damages cap. For negligence that occurred in 2020, the cap is $830,000.

The cap is a little different in a wrongful death case when medical negligence caused the death of the victim. In that situation, one or more people may bring a claim on the victim’s behalf and in their own right as wrongful death beneficiaries. The total cap for medical malpractice wrongful death cases occurring in 2020 is $1,018,750. Again, this is cap just applies to non-economic pain and suffering damages. There is no cap on economic damages such as past and future care, medical bills, and lost earnings.

Immunities

As if damage caps weren’t enough, the government also limits damages against itself. Not just a limit on non-economic damages, the following governmental entities have limits on all damages recovered in medical malpractice cases:

  • Local governments (like Baltimore City or Prince George’s County): $400,000.00 per claim/$800,000.00 per occurrence
  • Maryland state government: $200,000.00
  • Federal government: applies the cap of the state where the cause of action arose
Collateral Source

Maryland has a collateral source rule. This means that even if a victim received services or benefits, he could still recover the cost of those services. A good example is health insurance. If a doctor negligently performs a surgery that requires a second surgery, the victim’s health insurance may pay for that second surgery. However, in medical malpractice cases, there is an exception to this rule that limits the recovery to what the victim paid or will have to pay.

A Sliding Scale: Settlement v. Trial

A medical malpractice settlement value is different from the trial value of a case. That’s because a settlement is a compromise—each side gives up something in exchange for the certainty of knowing what they will get or give up. No one can ever say what a judge or jury will do, so settlement is a way to play it safe. For this reason, the settlement value is almost always less than the trial value.

External Factors That Impact Value

Attorney Quality

Particularly where settlement is concerned, the quality of the attorney can make a difference. Insurance companies and defense lawyers have a running list of lawyers and their success rates. If it is a lawyer or a law firm that regularly takes cases to trial that will not accept lowball offers, there is a good chance that settlement offers will be higher.

On the other hand, if the insurance company is up against a lawyer who has only gone to trial a handful of times, they factor this into the settlement equation. The hospitals and insurance companies know that those lawyers are afraid of trial. They believe, with good reason, that these attorneys are more likely to sell the case short (whether consciously or subconsciously). Having a medical malpractice lawyer with a proven track record sends a message.

If you are hiring a lawyer, ask how many large physician malpractice verdicts his firm has. It is a little bit uncomfortable. Because you are going to feel like you are cross-examining the lawyer on his or her experience. Do it anyway. You only have one case. So you want to measure twice and cut once.

Venue of Case

The location of a case makes a huge difference in the case’s value. In Maryland, Baltimore City and Prince George's County jurors are different from, say, Carroll County jurors. There are certain patterns and general qualities attributed (whether rightfully or wrongfully) to each geographic region. This perception is reality. Lawyers and adjusters will place different settlement values on cases based on what they think the relevant jury might do with the case.

To see our analysis of each Maryland jurisdiction, visit this page. This is critical to understand case values in the Baltimore-Washington area. Our state has very wild fluctuations in value for the same facts and the same injuries based on where the case would ultimately go to trial.

Quality of Plaintiff and Defendant

The jury will evaluate the plaintiff and defendant to determine whether they are believable, or whether they should be discounted. To some degree, this is a snap judgment—will the jury like or dislike the plaintiff and defendant? The more likable one side is, the more likely that side will receive a favorable or higher verdict.

Getting Help from a Medical Malpractice Lawyer

If you or a loved one has been the victim of medical malpractice or to get more information on the value of your medical negligence claim, contact our lawyers at (800) 553-8082 or online for a free consultation. Our medical malpractice attorneys handle cases involving birth injuries, hospital malpractice, ER malpractice, misdiagnosis of cancer cases, and other medical errors. If you are looking for real answers, give us a call.

Client Reviews
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They quite literally worked as hard as if not harder than the doctors to save our lives. Terry Waldron
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Ron helped me find a clear path that ended with my foot healing and a settlement that was much more than I hope for. Aaron Johnson
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Hopefully I won't need it again but if I do, I have definitely found my lawyer for life and I would definitely recommend this office to anyone! Bridget Stevens
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The last case I referred to them settled for $1.2 million. John Selinger
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I am so grateful that I was lucky to pick Miller & Zois. Maggie Lauer
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The entire team from the intake Samantha to the lawyer himself (Ron Miller) has been really approachable. Suzette Allen
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The case settled and I got a lot more money than I expected. Ron even fought to reduce how much I owed in medical bills so I could get an even larger settlement. Nchedo Idahosa