Posted on Mar 09, 2020 |Publications

By: Bob Worden, Esq. | March 2020

There are numerous benefits associated with using mediation to resolve medical malpractice disputes. The mediation process affords both parties more control over the process, often reduces the cost of litigation, and can expedite dispute resolution for all. Medical malpractice mediation also presents its challenges. Given the nature of medical malpractice claims, the atmosphere at these hearings can be tense, and negotiations can be emotionally charged. What follows illustrates the importance of understanding the nuances of medical malpractice matters whether one is an advocate or a neutral seeking to assist the parties to reach a settlement.

Bob Worden, Esq. Hearing Officer for NAM (National Arbitration and Mediation)

Rolling the Trial Dice or Achieving a Settlement 

A major impediment to settlement in medical malpractice disputes is the required reporting to the federal National Practitioner Data Bank (NPDB). All medical malpractice settlements or payments of judgment are reportable against the physician, if there is a settlement or judgment payment made by an insurer or by the employer of a physician. So, an optimistic physician may want to “roll the dice” and go to trial rather than settle, believing that he or she will win, rather than agreeing to a settlement reportable in the federal database.

Many malpractice insurance policies have a “Consent to Settle” endorsement. If the malpractice insurance policy contains this provision, it allows the physician to compel the trial, even if the physician's insurance company would rather settle the case. Some malpractice insurance policies do not require the insured physician to “Consent to Settle.” Where there is no consent for the physician required, the insurance carrier has the option to settle.

Moreover, some physicians agree to “Consent to Settle” simply because they don't relish the idea of spending weeks sitting in the courtroom, attempting to project charisma and competence in the hope of persuading the jury to find in their favor. And perhaps they would rather focus on their medical practice going forward, and for whatever reason, they aren't worried about the effect the database might have on their future employability and insurability.

Key Defenses

It is important for neutral mediators to be familiar with some of the standard defenses peculiar to medical malpractice cases. Is what happened a “known complication” and not the result of negligence? Did the patient have a bad outcome as a result of an underlying illness and not due to any departures from accepted medical practice by the physician? Was the patient's fate already fixed before the physician saw the patient for the first time?

Experienced plaintiffs' attorneys handling these cases know that they are not easy to win. Those who are new to medical malpractice need to know that successful cross examination of key physicians and expert witness physicians can each take a full day. In addition to the cost of producing the medical experts at trial, extensive preparation and courtroom time are required. Doctors are typically smart people and can figure out how to testify effectively at trial. They are more knowledgeable about the medicine than the attorneys questioning them. The cases with clearly indefensible errors by the doctors are few. So medical malpractice cases without obvious errors by medical providers may be difficult to for plaintiffs win because the defense may have arguments to persuade a jury.

Defenses that come up frequently are Hindsight, Known Complication and Error of Judgment.

The defense attorney will hammer the jury to put aside the knowledge of “what happened,” information obtained by the jury from the attorneys during the voir dire and opening statements. The jury will know if this is an amputation case, or if the patient is blind in one eye, or whatever the bad outcome was that brought this case to trial. Did the doctor act appropriately, based upon the available information and the standard of care in real-time versus 20-20 hindsight?


It is easy for a jury to conclude that a physician made the wrong decision or wrong diagnosis when there's 20-20 hindsight, but the law requires that the physician be judged on the information available to him at the time of treatment.


Typically, the plaintiff's arguments will be that the physician failed to order tests, or that tests were ordered, but the physician failed to examine the results or that he or she simply didn't understand the proper procedure to be conducted with the results. In other words, the attack against the physician is that he or she didn't gather enough information, or failed to understand the significance of lab test results or to understand the significance of a change in the patient's condition as documented by nurses or other physicians.

Even where the physician's conduct fails to meet acceptable standards of practice, the plaintiff's attorney still has to prove that the failure “made a significant difference” in the outcome. Many juries find that physicians have departed from the standard of care, but the plaintiff's case falls apart if the jury finds that the error was insignificant, or that the patient's poor outcome was inevitable, regardless of what the physician did or failed to do. Working in the plaintiff's attorneys favor is that he or she may only have to show that the physician's departure from accepted medical practice “deprived the patient of an opportunity for a better outcome.” This lesser degree of causation is allowed in malpractice cases, compared with the causation required in a general negligence claim where the plaintiff must show that the negligence of the defendant directly caused the injuries by a preponderance of the evidence.

Known Complication
Another defense to medical malpractice cases is the “known complication” argument.  This is defined by when the defense will claim that the medical procedure being performed had inherent risks that could not be completely avoided, regardless of the doctor's skill or degree of care. The classic example is where there is a bowel perforation caused by the physician's scope during a colonoscopy. The defense will argue that some patients' bowels are more fragile than others. The fact that the bowel perforated during the procedure doesn't mean that the procedure was done wrong. The defense argues that perforation is known to happen without negligence.


The plaintiff's attorney has the burden of proving that the doctor performing the colonoscopy procedure was negligent.


That burden is usually (but not always) met with plaintiff's expert testimony (via affirmation or trial testimony) that the physician did something wrong that caused the perforation. During the trial, the defense will produce the defendant doctor to testify and will also produce a defense expert witness, both of whom will likely testify that there was no negligence, no departure from standard accepted medical practice. The result at trial in many medical malpractice cases comes down to the credibility of the defendant physician and the credibility of the experts on both sides. Medical malpractice trials are often referred to as a “the battle of the experts”.

In order to win the perforated bowel case, plaintiff's counsel must produce a credible expert that will state that the defendant physician did something wrong, and testify to the fact that it was a departure from standard accepted medical practice that caused the injury – ultimately convincing the jury that the defendant physician did something wrong that caused the perforation.

Error in Judgment
This defense advises the jury that, if the physician has two or more reasonable choices about how to treat a patient and the physician makes a choice which later turns out to be an error, he cannot be held liable if a reasonable medical practitioner would have made the same choice. In other words, just because it turned out that the physician made the wrong decision, he or she cannot be held liable unless it was negligent to have made that choice.

Reasons for the Defense to Settle


Plaintiff's counsel has certain advantages at trial. Often the story the jury hears at the beginning of the trial is compelling and tragic.  Another advantage for the plaintiff is if the defendant's personality is perceived as being cold and uncaring.


Above all, the best reason for the defense to settle medical malpractice cases in mediation is that the trials can be unpredictable and volatile for both sides. A defendant doctor can easily suffer from “foot-in-mouth” disease under the pressure of a trial. Departures from accepted practice can materialize during the testimony of the physician or the experts. In other words, because these medical malpractice trials are so “testimony-dependent,” weak medical malpractice cases can become strong and strong cases can become weak, as the trial progresses. Sometime experts are cross-examined with prior testimony which they've previously given in similar cases that sinks the case for that side.  What does the jury do if both the plaintiff's expert and the defense expert are reasonable and if they both make sense? If it's close, the jury may find it hard to return a verdict against the physician, especially if the physician is likable.

The unpredictability of the result in medical malpractice trials encourages the case to settle.  Agreeing to an appropriate settlement without going through an ulcer-producing trial is a wonderful outcome for all concerned.

Settling a dispute before trial may also be desirable due to the difficulty of adequately conveying to the jury complex, and highly-technical information. The jurors will be asked to understand unfamiliar terms, principles and procedures. Most highly experienced trial attorneys agree that many times juries have decided cases based upon testimony or facts which none of the parties to the lawsuit regarded as significant. So, what may seem like a weak medical malpractice case at mediation can turn out quite differently if the case goes to trial. Similarly, despite a strong case being presented by plaintiff's attorney, the jury has the power to let the defendant health care provider “off the hook”, especially if the jury likes the defendant or doesn't like the plaintiff or the plaintiff's attorney.

New York State Medical Malpractice Limits 

Also, considered: some states may have local laws that affect the resolution of medical malpractice claims. For example, New York State has a Medical Indemnity Fund (MIF) to pay future medical expenses for injuries due to trauma at or around birth. (New York State Medical Indemnity Fund (MIF)-Public Health Law article 29-D, Title 4.) This statute is complicated, but the parties to the lawsuit need to understand how the statute affects the damages that can be claimed. It's a good idea to become familiar with that statute if you are dealing with a birth-injury case, because it can dramatically change the special damages claims. The MIF can foster settlements because the MIF ends up paying fully, all of the neurologically damaged infant's lifetime of care.

New York has also made it less attractive to plaintiff's attorneys to hold out for large jury awards, as the maximum fee to attorneys for compensation in medical malpractice cases is regulated on a sliding scale, so as the awards get larger, the percentage of the settlement or judgment that the attorney can obtain for his or her fee gets smaller:

“a contingent fee in a medical, dental or podiatric malpractice action shall not  exceed  the amount of compensation provided for in the following schedule:  (NY Jud L § 474-A (2014)) 

  •  30 percent of the first $250,000 of the sum recovered;
  •  25 percent of the next $250,000 of the sum recovered;
  •  20 percent of the next $500,000 of the sum recovered;
  •  15 percent of the next $250,000 of the sum recovered;
  •  10 percent of any amount over $1,250,000 of the sum recovered”

(NOTE: This statute has additional provisions which must be consulted to fully understand New York's medical malpractice retainer requirements.)

Where New York State municipalities are involved, the mediation result may be subject to the approval of a ruling body of the municipality. Any settlement achieved remains subject to municipality approval in the next month or next three months or six months, depending on the procedures and finances of a specific municipality.

Final Thoughts

Medical malpractice cases lend themselves to settlement if all sides are realistic and understand the uncertainty inherent in taking these cases to trial. The use of mediation to manage the risk involved in handling medical malpractice suits is becoming increasingly popular. Given the potential to save time and expense, mediation should be considered as a method to obtain your best outcome in an economical fashion. To get the best result, don't litigate, mediate!


Meet the Author 

Bob Worden, Esq. is a member of NAM's (National Arbitration and Mediation) Hearing Officer Panel and concentrates on high-exposure personal injury and medical malpractice cases.  In 2019, for the second year in a row, Mr. Worden was voted a Top Ten Arbitrator by the New York Law Journal Annual Reader Rankings Survey. He is available to mediate major injury personal injury claims and medical malpractice cases throughout New York State.  He is also a member of Lawrence, Worden, Rainis & Bard, P.C.

For any questions or comments, please contact Jacqueline I. Silvey, Esq. / NAM General Counsel, via email at or direct dial telephone at 516-941-3228.

For more information or to submit a case, contact us today.