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Getting Judges More Involved in the Settlement Phase of Medical Malpractice

Equity. Fairness. Justice. All three are words long-associated with the aims of the Court. Never to be forgotten, especially in this economy, curbing costs has also jumped on the bandwagon. One pervasive method for curbing costs has been to encourage parties to reach settlements long before the trial phase. This holds especially true in the realm of medical malpractice, where increasing liability expenses have caused a sharp increase in medical costs. As a medical malpractice attorney, I have also seen the unncecessary prolonging of litigation involving injury victims.

Now, attorneys representing clients with medical malpractice claims may even have a way to expedite the settlement process. The New York Times reports that the new strategy, called judge-directed negotiation, invites judges to get involved with pushing for a settlement very early on. In the program, cases are assigned to a judge who has training in medical issues. That judge then holds frequent settlement conferences, often on a monthly basis and a nurse with legal training assists. Lawyers participating in the program are required to have the authority to settle.

Atlanta medical malpractice attorneys think it’s wonderful to see new strategies emerging in this area of the law. For years, the issue of how to rein in the costs associated with medical malpractice has caused contention between lawmakers and interest groups. The only word of caution with this approach is that injured Plaintiffs should not be pushed to resolve a case before their total damages are clear or for an amount that is beneath the total settlement value of the case simply for expediency. In addition, when a defendant is denying liability, a case should not be resolved before the plaintiff has had an opportunity to fully explore liability issues that may impact the value of the case.

The New York Times notes that for now, however, the program has only been implemented in the Bronx, but a $3 million federal grant may allow for state-wide expansion. With judges actively pushing attorneys to reach agreements plaintiffs will be able to receive compensation years earlier. Years of litigation might also be bypassed, as well as the costs and expenses that often accompany such efforts. Of course, it is important the any judge involved in the process remain neutral, in the same manner as a mediator remains neutral when trying to resolve the matter.

Conceivably, this is a model that other states, such as Georgia and Mississippi, might consider adopting. Projections estimate that if adopted nationwide in some form, the program could save state courts upwards of $1 billion annually. I hope to see the program implemented on a wider scale before next year sees the end of the grant program the White House has enacted to service projects like this one. Public hospitals in Bronx, New York, say the program, coupled with other additions, may have already helped save $66 million in malpractice costs a year. This “cost” savings does point to a potential problem in the system. The only “cost” that should be saved is attorney’s fees that are not incurred due to earlier settlements and not a reduction in the compensation received by the victims of malpractice.