This question is one of the most common client questions even if it is rarely asked aloud. It’s rarely asked aloud because clients hear the propaganda that says that people who sue doctors and hospitals are greedy, lotto-seeking, frivolous-filing, evil people who need to be stopped lest society fall apart. And they think that this is how they will be characterized if they ask this question. So while they think it, they often don’t speak it.
Regardless of what others think, however, the question is a legitimate one. In our civil system money is the only thing clients can recover and money is often the only difference between whether their family survives or thrives following the catastrophic injury or death of a loved one. Still, it is a question that even we lawyers sometimes hesitate to answer because the factors that determine value are often hard to pin down with any accuracy, especially at the beginning of a case. This is why I (Bill) often do not discuss a specific dollar amount until the case matures to settlement or trial stage. Nonetheless, I do explain at the outset the factors that influence value and that’s what I will do here.
Necessary Elements of a Malpractice Lawsuit
When I first meet with my clients I tell them that all medical malpractice cases are stories, but to be a good story it must have the following elements: a likable protagonist, an unlikable opponent, and a loss a jury can do something about. The protagonist is, of course, the plaintiff herself and whether she is likable depends mostly on whether she is perceived as vulnerable. Vulnerability is critical because everyone knows what it’s like to feel vulnerable even if they haven’t experienced the exact loss the plaintiff has experienced. Vulnerable plaintiffs, then, bring forth the holy grail of emotions in litigation: empathy. No juror ever votes in favor of a plaintiff without empathy. Vulnerability is most evident in people who are trying hard to overcome a serious loss but need help in doing so. Minor injuries, whininess, exaggeration, and anger are all examples of characteristics possessed by unlikable plaintiffs because these characteristics communicate the opposite of vulnerability. The more genuinely vulnerable the plaintiff, the more valuable the case.
By opponent I mean of course the defendant-the person or entity being sued. By being unlikable, I do not mean that the opponent has to be Osama Bin Laden-although that wouldn’t hurt-but only that he act or speak in a way that shows he doesn’t care. A doctor who doesn’t return calls, or a hospital that uses paramedics in triage because it’s cheaper than using nurses, are examples of uncaring-and therefore unlikable-defendants. The reason this matters is because jury verdicts not only compensate the plaintiff but also communicate outrage to the community; that is, they are statements to the world that such conduct will not be tolerated. The more uncaring the defendant, the greater the outrage; the greater the outrage, the greater the verdict.
Factors That Determine Value
Last, value is determined by whether the loss has a remedy. Except for the most biased jurors, juries want to fix that which has been broken. The more that money can be shown to help a plaintiff regain a normal life, the more a jury would compensate to fix it. This is why death cases are often worth less than permanent injury cases. Indeed, you may reasonably ask how juries can ever “remedy” death cases. Of course, they cannot in a literal sense, but with true high-level lawyering it is possible to create genuine empathy for the loss of relationship that death causes-a very real but intangible loss. For example, one of our juries in Will County case, returned $1 million dollar verdicts for each of four minor children who’d lost their father to medical malpractice. In that case we were able to remind the jury just how important a father is to his children. What we told the jury was not based in greed, frivolity, or lottery-seeking but TRUTH. Truth about just how important fathers are and how vulnerable children are without them. Now, that’s what I mean by high-level lawyering.
