Our friends at Mishkind Kulwicki Law Co., L.P.A. discuss how they have handled catastrophic medical malpractice and traumatic brain injury (TBI) cases with combined 80 years of experience and over 150 jury trials. We are frequently asked by clients and colleagues for advice on the settlement value of their case. Case valuation is not the same thing as valuing someone’s life or health. Instead, it is an exercise in risk assessment. Insurance companies employ risk analysts to assign case values. Insurers’ risk analysts have access to huge data banks reflecting vast numbers of verdicts and settlements to inform their analysis. Plaintiffs’ lawyers do not have access to these data banks. But we have other resources that we rely on to advise clients about case value. An experienced medical malpractice lawyer can help assess the strengths and risks of a claim and provide informed guidance on potential case value.
Plaintiffs’ lawyers rely on two primary resources for determining case values: (1) verdict and settlement reports; and (2) our own experience. Typically, we assign a range of case values since the ultimate decisionmaker, a jury, may have widely varying values for the same injury, depending on the make up of the jury. Some jurors are stingy, while others recognize the importance of full and fair compensation to the injured party.
Case value is dependent on two primary considerations: (1) the strength of liability and (2) the extent and provability of damages. “Damages” is a term that lawyers use to describe the compensable harms and losses recognized by law.
Liability
If liability is strong, we would recommend settlement in the top range of possible case values. In weaker cases, case value goes down, reflecting the possibility of losing at trial altogether. The strength of liability varies based on the type of case and the case facts. For example, motor vehicle accident cases typically have very strong liability. Liability is essentially fixed by the police report. One party is cited for the accident and for all intents and purposes they are deemed the liable party by lawyers and insurers alike. Car accident liability is even stronger if the police locate and interview independent eyewitnesses. In rare cases, liability is contested. Here, liability is weaker and results in lower case valuation.
In contrast to car accidents, medical malpractice cases are usually disputed. Self-insured hospitals and professional liability insurers aggressively defend these claims in most cases. It is easy for healthcare defendants to find an expert to defend their care even in the most egregious cases. Making matters worse, it is relatively easy for a devious medical expert to pull the wool over a jury’s collective eyes, since jurors typically lack medical or scientific training. The Ohio Department of Insurance reports that about 70% of medical malpractice trials result in defense verdicts, that is, a verdict in favor the negligent healthcare provider. These difficult odds diminish settlement values as clients are forced to take into consideration the high risk of losing at trial.
Damages
In wrongful death cases, whether caused by medical malpractice, car accident or some other negligent event, compensable damages include the following: loss of future wages, medical expenses, funeral and burial expenses, loss of services, and mental anguish and loss of companionship suffered by the surviving family members. These damages are not subject to caps. We hire an economist to estimate lost wages and the value of loss household services. The presence of these economic losses and the age of the decedent provide key data points for assessing wrongful death damages.
When medical malpractice results in injury, rather than death, the case value hinges on the extent of the injury. A minor injury or one that results in a full recovery naturally has a lower value than a case where the patient is permanently disabled. Compensable damages include loss of wages, loss of services, past and future costs of care and pain and suffering. We use economists and life care planners to determine the value of economic damages (loss of wages and costs of future care). Note that pain and suffering damages are capped in Ohio. For this reason, economic damages are a major factor in determining the value of the claim.
TBI cases
TBI cases pose special considerations. Often, there is no objective evidence of TBI to prove that the injury has occurred. You may have read that Chronic Traumatic Encephalopathy (CTE), a form of TBI suffered by athletes as a result of a concussion, is only diagnosed on autopsy by looking at slides of brain tissue under a microscope. This objective evidence of injury is not available when the injured party is alive. Likewise, imaging modalities like MRI and CT typically do not reveal signs of TBI, unless there is bleeding on the brain or observable brain damage. For these reasons, TBI damages are more difficult to prove, making it more difficult to get full compensation in these cases even when liability is clear-cut.
AI
We have been asked by clients if their case value can be determined by AI resources like Chat GPT. The answer is a hard “no.” Not only does AI ‘hallucinate,” but it draws on exceedingly limited resources to assign case values. AI can only assimilate publicly available data in its analysis, so that analysis is limited to jury verdicts reported by major media outlets. As it turns out, media outlets never report defense verdicts in injury cases and usually only report large verdicts in cases where the plaintiff prevails. Losses and low verdicts are not considered “newsworthy.” Since the analysis focuses solely on big wins, AI will inevitably generate an analysis that vastly overinflates the value of a claim with no consideration of the probability of success. For now, there is no substitute for an experienced trial lawyer in assessing the value of your case.