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Potential Pitfalls of “Early Settlement” Laws in Medical Malpractice Cases

Each Chicago medical malpractice lawyer at our firm knows intimately the lengths to which many chronic defendants will go to make it difficult for victims of malpractice to receive fair redress. The most high-profile efforts are proposed tort “reform” measures that completely eliminate certain rights-like caps which make it impossible for plaintiffs to receive the full amount of loss that a jury decides applicable in their case. Beyond somewhat obtuse tort reform proposals like damage caps, there are many other more subtle ways that big interest groups seek to legislatively save themselves money at the expense of those hurt by misconduct.

In many ways it is even more important to share accurate information about these more subtle proposals, because it may be harder for regular community members to understand the potential harm in the policies. For example, a guest editorial in the Nashua Telegraph this weekend explained the potential dangers of “early to settle” legislation. Our Illinois medical malpractice attorneys know that similar measures are being proposed in states across the country.

The “early to settle” idea comes in various forms but essentially involves having those hurt by medical malpractice enter an “early offer” system with the insurance company then trying to settle the matter without going to court. Of course, on its face it is easy for some to believe that this option is a logical one that is fair and would work to the advantage of those hurt. However, a closer look at the effect of this kind of legislation leads to many red flags.

For one thing, entering into this “early offer” system comes with very serious consequences for the rights of the victim. Usually, they are persuaded to join the system without first having the counsel of legal professionals of their own to understand the consequences of making this decision. Of course, that is a key reason why so many insurance companies are pushing these sorts of system-so that plaintiffs give up legal rights to the advantage of the insurance company without realizing it.

The main issue is that if the insurance company does not make an acceptable offer in the early offer system, the medical malpractice will have a very difficult time filing a regular civil lawsuit and seeking compensation for harm. In most versions of these bills, if the settlement offer doesn’t work, the standard of proof changes in any subsequent civil lawsuit. Instead of being forced to show negligence based on a preponderance of the evidence, the plaintiff must show that the medical professional was “grossly negligent” or some other heightened burden. These differences are not mere semantics. In many cases, because of the availability of evidence, proving that heightened standard is virtually impossible.

On top of that, some versions of these bills mandate that joining these early offer groups also mean that plaintiffs give up any access to certain kinds of losses-such as pain and suffering, loss of companionship, loss of enjoyment of life, and similar damages.

Our Illinois medical malpractice attorneys understand that most of these measures are yet another way for insurance companies to try to take away basic rights from those hurt by negligence. As with virtually all other tort reforms proposals, there is no need to pass laws just to keep more money in the pockets of insurance companies. Fair access to the justice system and a jury should remain open to all.

See Our Related Blog Posts:

Person Injury Lawsuit Alleges Negligence By Hospital in Bad Diagnosis

Former Tort Reform Advocate Realizes the Harm from Damage Caps