May 16, 2018

How Settlement Negotiations Work in a Medical Malpractice Case

Settlement Negotiations

Medical malpractice settlement negotiations are handled differently than other personal injury cases. A person who intends to sue a doctor or medical facility must first be aware that he or she has a specific time in which to start a lawsuit or settlement negotiations. In Wisconsin, this may be up to five years, but in most cases, it is up to three years from the date of the injury or one year from the date the injury was discovered. To ensure that you begin your lawsuit within the statute of limitations, always contact a medical malpractice attorney as soon as you realize you may be the victim of malpractice.

Initial Proceedings

Once it has been determined that it is not too late for you to file a lawsuit or start negotiations, you have two choices:

  • You may take advantage of Wisconsin’s voluntary mediation rule and ask for mediation before you file the medical malpractice lawsuit.
  • You may have filed a lawsuit, but if you decide you would prefer to settle if possible, you have up to 15 days after you file the lawsuit to ask for mediation.

In both cases, the statute of limitations is stopped until either mediation is completed with a settlement agreement, or you and the medical facility or doctor determine that you cannot settle, and you wish to continue with the lawsuit. Once either of those two actions is completed, the counting of the days starts where it left off.

Caps on Awards/Damages

As of April 2018, the highest compensation you can get from a medical malpractice lawsuit for “non-economic” damages (usually for pain, suffering and disability) is $750,000. There is no limit on the amount which can be recovered for medical and related care expenses and lost earnings resulting from the malpractice.  In July 2017, a Wisconsin appellate court stated that $750,000 for non-economic damages is “unconstitutional on its face.” This means that the court agrees that in catastrophic injury cases, $750,000 may not be enough to cover your injuries.  This case is currently being reviewed by the Wisconsin Supreme Court.

Evidence and Discovery

Although you may settle out of court, it is still important that you have all of the medical evidence possible that your doctor or medical facility made a mistake in your care. Hospital bills, second opinions and anything that is in your medical chart should be accessible to you and your attorneys. The evidence and discovery will help the mediator negotiate a fair amount due to you.


Liability rules can be somewhat different for medical malpractice cases. An injured person must present expert testimony that the doctor or facility failed to follow the accepted “standard of care” for the condition.  Expert proof is also required to show that any violation of this standard of care caused harm to the patient.  This requirement of expert opinion evidence makes medical malpractice cases much more expensive to investigate and prove than most other kinds of cases.

Contact Gingras, Thomsen & Wachs, LLP

Medical malpractice lawsuits are often highly personal and can be physically and mentally painful or challenging. Entrusting your life or the life of someone you love in someone else’s hands can be terrifying, especially when things go wrong. If you believe you or someone you care for is suffering from a condition caused by medical malpractice, contact Gingras, Thomsen & Wachs, LLP to set up a free consultation. You can trust us to fight for you and what you deserve if you are suffering from a doctor’s negligence, while you focus on recovering.

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