Medical malpractice actions can be highly sensitive and difficult for doctors as well as the patients or surviving family members who bring them. Resolving a case via mediation instead of in court can help both sides maintain privacy. This can help protect a doctor’s reputation. A plaintiff can’t discuss the case publicly without written consent from the medical professional.
Mediation is typically a less lengthy and expensive process than litigation – particularly one that might end with a jury verdict that requires a large payout. Mediation can last as little as a few hours or can run for multiple days. However, it’s typically a much shorter process than settling the matter in court.
With mediation, the parties don’t have to worry about how the emotions or experiences of jurors may play into the outcome. Mediated decisions don’t have a “winner” and “loser.” They’re typically a mutually acceptable resolution.
Both sides can (and typically should) have their own individual legal representation as well. Remember that even though mediators are often attorneys, they are neutral third parties – not there to help one side or the other. While some malpractice cases are more complex than others, all participants benefit from having their own legal representation.
A word about malpractice caps in California
In 2022, Gov. Gavin Newsom signed a law that established an annual increase in the cap on non-economic medical malpractice damages each year (starting in 2023) as the cost of living increases. The cap was set at $350,000 with an annual increase of $40,000 for the next decade (when it would be $750,000). After that, it increases 2% each year.
For cases where a patient has died, the cap was set at $500,000. There’s a $50,000 annual increase over ten years until it reaches $1 million.
Since non-economic damages aren’t quantifiable in the way economic damages are, without caps, they can get out of control – especially if a jury is deciding the matter. It’s still important for doctors to be prepared for the kind of non-economic damages a patient or surviving loved one may seek for things like:
- Pain and suffering
- Emotional distress
- Loss of consortium
- Scarring and disfigurement
The real or perceived effect of a bad medical outcome on a person’s life can be significant. They want that to be understood and recognized, even if they don’t get the full amount of compensation they’re seeking. This is another advantage of mediation. It allows both sides to see each other as people rather than just adversaries.