04.27.2026

In litigation, one of the most important strategic decisions is whether to try a case before a jury or settle. For all involved, including insurers, defense counsel, and risk management, the analysis of the case for purposes of determining whether to proceed to trial means consideration of the perceived strength of the evidence, risk tolerance, and exposure. Still, medical malpractice cases pose unique challenges to the analysis of the evidentiary strength and valuation of the damages, such that the risk tolerance is falsely supported, which can complicate this analysis and present significant risk under a traditional settlement approach. 

Presuming that the defense is bolstered by the evidence as presented in the records and/or based upon accepted principles of medical science is foolhardy in a medical malpractice claim, where this evidence must be understood and accepted by a jury of lay persons. In addition, undervaluation of damages will have a domino effect in undermining the reliability of the exposure risk and artificially increasing the risk tolerance. These errors in realistic case analysis and/or jury perception can cause costly surprises at trial. Understanding why this happens and identifying the warning signs quickly can help parties avoid unnecessary risk and make well-informed decisions about whether a case belongs in the courtroom or at the settlement table.  

Medical Malpractice: A Different Skeleton 

While both medical malpractice and non-professional or general liability claims arise from allegations of negligence, the similarities end there.   

General liability cases, such as premises liability or motor vehicle accidents, frequently involve more predictable patterns of liability and damages. Defense counsel and insurers frequently rely on historical verdict data, standardized injury valuations, and established negotiation frameworks. As a result, these cases often settle within relatively predictable ranges.  

Medical malpractice claims, however, present a different set of variables. They almost always involve complicated medical evidence, which must be understood in context, on a patient-to-patient basis. Just because one person, maybe even a juror, has had a similar condition, injury, or disease and has undergone similar treatment does not guarantee a similar outcome. The twists and turns of medical science can make even simple principles seem far-fetched. There are often multiple professional defendants or clinicians, sometimes of varying specialties, who may have treated the plaintiff individually or concurrently; there may be several theories of the medical defense, some of which may present competing or conflicting issues. The plaintiff and his/her/their counsel will endeavor to tell an emotionally powerful story, and if executed well, will establish a David and Goliath power dynamic in the plaintiff’s favor. Juries may respond differently when the alleged negligence involves a trusted healthcare provider and a patient who suffered life-altering injuries.  

Most patients who become plaintiffs were seeking medical treatment because of an underlying condition, disease, or injury. These plaintiffs begin with a wholly different baseline than a general liability plaintiff.  Depending upon the type of underlying condition, disease, or injury for which the plaintiff is seeking treatment, this baseline may be increasingly difficult to explain to a jury of lay people. The defense is forced to start from a position of explaining against stereotype, i.e., good medicine -> good outcome vs. bad medicine -> bad outcome. However, the truth is that even with the best medical treatment, some conditions cannot be cured.  

Because of these dynamics, medical malpractice cases can be more difficult to accurately assess the ability of the evidence to translate to the jury. The defense must understand and appreciate the innate bias that permeates a jury in a medical malpractice claim in order to provide an accurate assessment of the true trial risk. Defense counsel must have an intimate familiarity with the medicine, the parties, and the evidence in order to build the skeleton into a comprehensive and successful defense. Without this type of fundamental understanding, the defense can significantly underestimate the true trial risk.  

Why Medical Claims Are Commonly Undervalued  

Several recurring variables contribute to the undervaluation of medical malpractice claims.  

First, liability assessments may focus too narrowly on technical defenses rather than on jury perception. Even when the medicine appears defensible, jurors may be influenced by outcome-based reasoning, notably in cases involving catastrophic injury or death.  

Second, damages in medical malpractice cases can escalate quickly. Life care plans, long-term treatment needs, lost earnings, non-economic damages, including wrongful death interest, can combine to create substantial exposure. When these damages are fully presented at trial, they may exceed early settlement projections by a wide margin.  

Third, expert testimony plays an outsized role. A well-credentialed expert who presents a clear and convincing narrative can significantly shift how jurors view both liability and damages. Early evaluations that underestimate the impact of plaintiff experts can lead to miscalculations of the case's true value.  

Finally, medical malpractice trials regularly involve complex timelines and multiple decision points. What appears to be a defensible clinical judgment may be reframed by plaintiffs as a series of missed opportunities or systemic failures.  

Signs/Symptoms of an Undervalued Claim 

• Is the plaintiff young?
  • If yes, has the impact of juror sympathy been considered in the overall exposure risk?
  • If yes, have future costs been considered, including life care plans, economic analysis, medical needs, and/or permanent disability?
• Is this a “severe” or “life-altering” injury?
  • If yes, has the emotional impact upon the plaintiff and/or their family, dependents, spouse, and children been considered?
  • If yes, has the cost of future care, assistance, and economic impact been considered?
• Has the plaintiff’s counsel exchanged expert disclosures early?
  • In some cases, the plaintiff’s counsel may have retained early experts, maybe because the case is very strong, as an initial offering toward negotiations?
• Are there issues, discrepancies, or errors in the medical records?
  • A skilled plaintiff’s counsel will exploit the discrepancy or clerical error as evidence of negligence or worse, an attempt to manipulate the evidence.

When Settlement May Be the Right Treatment  

Settlement is not an admission of liability; it is often a tactical decision based on risk management. When damages exposure is high and the outcome at trial is uncertain, early resolution may provide a more predictable and controlled result. In a high-exposure case, we often view the facts in the light most favorable to the plaintiff when analyzing the case’s sustainable value. Once determined, as defense counsel, we must work with risk management and the insureds to understand the potential risk, i.e., what is the likelihood of success or loss. If the case is supported by a defense that, at best, may be successful 3 or 4 times out of 10, or a 30-40% chance of success, that effectively means the case is lost 6-7 times; consideration of settlement may be prudent. The risk tolerance and management of same relies heavily on these predictions. This critical review of the case is necessary at the very beginning of a case, and must be continuously reviewed, re-analyzed and adjusted as the case progresses.  

Settlement in medical malpractice cases can reduce reputational risk and emotional strain for healthcare providers who may otherwise face weeks or even months in a courtroom, instead of in their office, hospital, or the OR, while their professional competence is judged and their clinical decisions questioned.  

Accordingly, this practical view of the case can be utilized to avoid significant costs associated with trial preparation, expert testimony, and appeals, where settlement is preferred. Importantly, settlement discussions are most effective when they occur before positions harden. Once parties have invested heavily in trial preparation, psychological and financial pressures can make compromise more difficult.  

When the Diagnosis Requires Trial   

Of course, not every case should settle. Indeed, when the case presents a strong medical defense, bolstered by credible clinician-defendants, with supporting expert opinion from trial-proven witnesses, it is essential for both the insured clinicians and risk management to trust the process and skill of defense counsel to try the case. Where damages appear inflated, or the plaintiff’s expert(s) lack credibility, or the theory is unsupported by medical science, a trial of the matter serves to both maintain and defend the professional reputation of the insureds and the healthcare institutions, in addition to discouraging future meritless litigation. The key is to ensure that the decision to try a case is grounded in a realistic assessment of jury risk rather than an overly optimistic valuation.  

A Collaborative Approach to Case Analysis  

Avoiding the pitfalls of undervaluing medical claims often requires collaboration among claims professionals, defense counsel, medical experts, and risk managers.  

Early case assessments that incorporate medical analysis, damages projections, and jury psychology can deliver a more accurate picture of exposure. Regular reassessment as discovery unfolds can also help ensure that settlement decisions represent the evolving strengths and weaknesses of the case.  

Ultimately, the decision to try or settle is not simply a legal calculation; it is a deliberate judgment about risk, credibility, and narrative. By discerning the distinctive dynamics of medical malpractice litigation and heeding the signs specific to each case to prevent artificial inflation of the defense and/or undervaluation of the damages, defense teams can make better-informed recommendations to avoid the costly surprises that await at trial. 

For additional guidance on best practices for trying a case before a jury or settling a medical malpractice case, please contact Patricia A. Stone, Healthcare Litigation Partner at Shaub, Ahmuty, Citrin & Spratt, LLP.