In most civil cases, the plaintiff’s attorney will contact the potential defendants
and try to negotiate a settlement before filing a lawsuit. To encourage this
informal resolution of claims, some states require that defendants in medical
malpractice lawsuits be notified some period—perhaps 60 days—before a
lawsuit is filed. Medical care practitioners contacted by an attorney with a
claim that is covered by the practitioner’s insurance should notify their insurer
at once and not talk to the attorney until discussing the claim with the insurer.
If it is an uninsured claim, perhaps for defamation or antitrust, the defendant
must contact his or her own attorney at once and have the attorney deal with
the plaintiff’s attorney.
If the plaintiff makes a settlement offer before a lawsuit is filled, that offer
should always be evaluated. Outside of the malpractice area, many cases can
be resolved much more satisfactorily before litigation hardens both sides’
positions. In employment cases, for example, the defendant may be able to
resolve the situation by a job transfer or some severance pay, whereas fighting
the case could disrupt the workplace and risk a substantial jury verdict. For
problems that affect more than one potential plaintiff, every additional case
will have access to all the information produced in the first lawsuit, and the
publicity will only encourage others to sue. Medical malpractice cases are much
less likely to be settled because of the federal reporting requirements for the
National Practitioner Data Bank.