Dateline: May, 2008, Issue 3
While negligence is at the heart of personal injury claims at trial, negligence is not always at the heart of decisions to settle.
Harris and colleagues (2006) examined settlement decisions in medical malpractice litigation, and studied the importance of the witness potential of the defendant physician, the witness potential of the plaintiff, and the reputation of the plaintiff's attorney. Data were collected from insurance company files on cases filed in the North Carolina state courts between 1991 and 1995.
When the insurers' outside physician reviewers rated liability as probable based on the standard of care, settlement occurred in most of the cases.
When liability was rated as uncertain or unlikely, the witness potential of the defendant physician, the witness potential of the plaintiff, and the reputation of the plaintiff's attorney made a difference in the resolution of the case. Cases in which the defendant physician had a strategic advantage were much less likely to settle, while cases in which the plaintiff had a strategic advantage were much more likely to settle.
The reputation of a plaintiff's attorney, in combination with the witness potentials of the plaintiff and defendant, affect settlement decisions when defendant liability is uncertain or unlikely.
Source Harris, C. T., Peeples, R., & Metzloff, T. B. (2006). Placing 'standard of care' in context: The impact of witness potential and attorney reputation in medical malpractice litigation. Journal of Empirical Legal Studies, 3, pp. 467-496.