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Medical malpractice award may not be fully payable

Medical malpractice verdicts in Delaware continue to compensate those who suffer injury during a medical procedure. There continue to be some very high awards from juries. Sometimes, however, the plaintiff does not have a right to receive the verdict amount and must accept a lower overall amount.

A strategy that the plaintiff and the defendant agree to can cause this result. In some cases, the plaintiff may lose quite a bit by having made the agreement but at other times, such an agreement was a very fortunate decision.

$3 million award only pays out $750,000 for injured baby

As noted by USA Today, a jury held a Delaware obstetrician liable for $3 million in damages after a baby was born with permanent nerve damage to the right shoulder. In that case, the plaintiff alleged that when the baby’s shoulder became stuck during delivery, the doctor was too rough when trying to extricate the baby. The plaintiff claimed that the doctor pulled excessively hard on the neck and head of the baby. Part of the issue of negligent medicine included the fact that the doctor had failed to notify the parents of the risk involved in the procedure.

Despite the $3 million in damages resulting from the recent trial, the plaintiff will receive only three-quarters of a million. This is because prior to the verdict, the plaintiff and defendant agreed to a cap on the award. One may wonder why a plaintiff would willingly cap its own award. In this case, although not stated, the agreement between the plaintiff and the defendant may have been a high-low agreement.

High-low agreement protects both plaintiffs and defendants

High-low agreements are a tactic that both plaintiffs and defendants mutually utilize. Defendants often fear an extravagant jury award. This may be particularly worrisome if the case involves an emotional or very sympathetic issue for the plaintiff’s side. A jury verdict can be an unforeseeable wild card. Defendants seek to limit the risk of the wild card resulting in an excessive verdict.

Plaintiffs, on the other hand, get the benefit of a minimum monetary amount that they will receive regardless of the verdict. Plaintiffs may have concerns that the jury may not find the defendant to have been negligent at all. If that were to happen and there was not a high-low agreement in place, the plaintiff would receive nothing.

Plaintiffs only agree to a cap because they are getting something in return, the guaranteed payment even if they lose the case. Defendants agree to the minimum regardless of the verdict, even if a no-liability finding results, so that they also get the cap and can self-protect.

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