Insurance policies are written and interpreted as contracts. Since those policies are often many pages and very detailed, there is no way to accurately predict the precise language that each might trigger coverage. Even so, almost every medical negligence policy will provide that it will only pay for losses caused by negligence that proximately caused the particular harm. Insurance companies are not ordinarily ready to concede either negligence or causation without being thoroughly and completely convinced that both are clearly established. While this may be prudent in many circumstances, it is also true that insurance companies have monetary incentives to avoid paying claims as any money avoided adds to the bottom line of the insurance companies.
Insurance adjusters and their attorneys have incentives to be overly skeptical of claims and will carefully evaluate not only whether negligence and causation are established, but also whether the individual claimant can persuasively prove it when it does occur. In our legal system, there are many barriers presented for even the most meritorious claim of medical negligence so that a fair number of meritorious claims are unsuccessful at overcoming these obstacles even under the best of circumstances.
Finally, even when all sides and parties agree that a medical error has been made, extended litigation is often required to establish the proper value of the claim. All the while, the insurance company retains the claim funds and does not pay over any interest on this money when it finally pays the claim.
Whether a legitimate claim will be paid at all, and the amount of the claim actually paid, often depends on many factors well known to attorneys experienced in bringing such claims. Otherwise, those asserting valid claims of medical negligence may find themselves at the mercy of an insurance company that will likely avoid payment unless and until it is clearly established that it is absolutely required.
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Even in the most seemingly clear cut cases an expert medical review is required to establish the appropriate standard of care and the medical consequences caused by the medical failures.
Medical negligence claims are among the most highly contested and commonly expensive claims that can be prosecuted. As a result, most qualified medical negligence attorneys will only perform this work if there is a reasonable expectation of success. And, since it usually requires the attorney to fund the case most qualified medical negligence attorneys require a significant percentage fitted to the substantial risk of loss.
Often people are quite sick or near death when seeking medical care. Sadly, even the best medical care may not demonstrably improve the odds of suffering a poor outcome. Attorneys handling medical malpractice claims must enlist the aid of qualified medical experts to evaluate the matter and independently determine whether the poor outcome resulted from medical error, or some other factor outside the control of modern medical science. When a case is evaluated by a qualified medical practitioner and determined not to show a violation of the standard of care, or a lack of appreciable change in the outcome as a result of what may indeed be a breach, then there can be no successful case pursued under the law. Additionally, there are cases where there is a demonstrable medical error that causes injury or damages that are outweighed by the likely costs of suit so that a wise and careful may be to avoid the suit altogether.
In the event that you would be best served pursuing a medical malpractice case, you would be asked to enter an agreement with our firm to represent you. This would involve presenting viable medical support and the filing of a lawsuit. Many cases resolve through settlement. Others require a trial. The insurance company will commonly seek consent of its insured to settle the case. There are times when a negligent physician will be confronting significant evidence of negligence but will not grant consent. In that case, trial is the only option.
A claim for medical negligence is a civil claim and ordinarily does not take any notice of whether a crime may or may not have been committed. Instead, the focus is to evaluate whether there is sufficient evidence and testimony to establish that negligence is by a “preponderance,” meaning more probable than not, usually through testimony from a well-qualified expert medical witness.