St. Joseph Michigan Criminal Defense Blog

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Confidential Settlements

Confidential Settlements

Confidential Settlements
The vast majority of significant personal injury settlement offers come with a catch “ the defendant wants a confidentiality clause included in the settlement agreement, barring the plaintiff and his or her attorneys from publicly discussing the facts of the case or terms of the settlement. In exchange for keeping their mouths shut, plaintiffs often benefit by obtaining higher compensation. In many circumstances, the plaintiffs also have a preference for maintaining their own privacy.

Why do the defendant attorneys routinely insist on confidentiality clauses in their settlement agreements? Typically, defendants “ and their attorneys “ want to prevent evidence, such as witnesses or documents, from being accessible to future plaintiffs. In the grand scheme of things, this makes the defendant less accountable for its conduct.

Arguably, our legal system and the overall population would benefit from an outright rejection of confidential settlement agreements. Yet, most plaintiffs lawyers quickly capitulate; a settlement in hand is a sure thing, prevents future expenses necessary to bring a case to trial, and avoids the uncertainty regarding how much a jury might award in damages. Plaintiffs typically agree to maintain secrecy, as well. Seriously injured victims and their family members may be struggling financially and emotionally, and have a strong desire to put the matter behind them. It is understandable that they focus on their own needs and recovery, rather than how it may impact future plaintiffs or the public’s access to information and evidence.

Some attorneys and ethicists believe that lawyers rules of professional conduct provide them with sufficient grounds to reject secrecy clauses. Most states ethical rules favor enabling the public to have a realistic understanding of which attorneys have expertise in cases involving certain circumstances or against particular defendants.

However, those same rules of professional conduct also require attorneys to act in the best interests of the client “which often means agreeing to a speedy or generous settlement offer. Some legal ethicists suggest addressing confidentiality upfront, at the beginning of settlement negotiations. However, this approach may reduce the amount of a future settlement offer, or cause the defendant to take settlement off the table entirely. This risk, too, must be discussed with and agreed to by the client.

Furthermore, in this type of situation, the risk is borne by the plaintiff but the benefits are only realized by the general public, as mentioned above, or the lawyer who later enjoys bragging rights when he would otherwise be muzzled. It can be a tough sell, and one fraught with its own ethical implications. In the end, only the client can decide what is best for his or her situation. Some will agree to the risk for the greater good while others must do what is best for them and their families.

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Medical Malpractice

Do You Have a Medical Malpractice Case?

Medical Malpractice

Your Doctor Made a Mistake But Do You Have a Medical Malpractice Case?

The term medical malpractice, sometimes called medical negligence, refers to a situation in which a health care provider fails to act in accordance with standards of accepted medical practice, causing injury or death to the patient. A physician, nurse or other health care professional is considered negligent if his or her conduct is below the standard of care, i.e. the degree of care and skill that the typical health care professional would provide to a patient seeking treatment for similar symptoms or under similar circumstances.

It’s not just doctors and nurses who can be sued for medical malpractice. Any licensed health care provider who is in a position of trust can be held accountable for diagnosis or treatment that causes injury or death. These can include lab technicians, radiology technicians, specialists who interpret your test results, ambulance companies and their employees, and facilities such as hospitals, nursing homes and pharmacies.

There are many types of mistakes which may be considered medical malpractice, depending on the overall circumstances of your injury or illness and the treatment you received. Common medical malpractice claims include:

  • Incorrect or missed diagnosis
  • Failure to conduct appropriate diagnostic tests
  • Failure to properly treat your medical condition
  • Failure to properly administer medications
  • Failure to properly perform a surgical procedure
  • Failure to manage a pregnancy or safely deliver a baby
  • Failure to warn you of the risks of treatment, which would enable you to give your fully informed consent to the treatment
  • Failure to anticipate a problem which should have been anticipated in accordance with the standard of care

Even if your medical treatment results in a negative outcome, the doctor’s or nurse’s conduct may not rise to the level of malpractice or negligence. Furthermore, even if the treatment you received clearly fell below the standard of care and is deemed negligent, you may run into difficulties bringing your claim due to the high cost of litigating a medical malpractice case. Because medical malpractice cases often hinge on the definition of the standard of care required for that particular situation, experts must be consulted and retained to prepare reports, give depositions and testify in court.

You should consult with an experienced medical malpractice attorney who can help you determine whether the health care provider’s negligence was truly the result of malpractice and whether your case is worth pursuing. Your attorney will review your medical records and will likely have to retain a medical expert who can review your records to evaluate the merits of your claim. Due to the significant expense involved in performing such reviews and obtaining assistance of experts for a medical malpractice claim, the vast majority of meritorious cases settle before the case goes to trial.

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