One of the most significant decisions you’ll face in a medical malpractice case is whether to accept a settlement offer or proceed to trial. Each path has distinct advantages and risks, and the right choice depends on the specific circumstances of your case, your personal situation, and your tolerance for uncertainty.
If you’re navigating a medical malpractice claim in New Jersey, understanding the differences between settlement and trial will help you make an informed decision when the time comes.
Understanding Settlement in Medical Malpractice Cases
A settlement is an agreement between you and the defendant (typically the healthcare provider’s insurance company) to resolve your claim for a specified amount of money. When you settle, you receive compensation in exchange for releasing your claims—meaning you give up the right to pursue the matter further.
When Settlements Happen
Settlements can occur at any point in the litigation process:
Before Filing a Lawsuit: Sometimes cases settle during the investigation phase, before a complaint is even filed. This is relatively rare in medical malpractice because defendants typically want to see how the case develops before making substantial offers.
During Discovery: As both sides gather evidence and understand the strengths and weaknesses of their positions, settlement becomes more likely. Many cases settle after key depositions reveal important information.
At Mediation: New Jersey courts often require mediation—a structured settlement conference with a neutral mediator. Many cases settle during or shortly after mediation.
On the Courthouse Steps: Some cases settle immediately before trial, when the reality of jury decision-making focuses everyone’s attention.
During Trial: Cases occasionally settle even after trial begins, sometimes during jury deliberations.
The Advantages of Settlement
Certainty of Outcome: Trial is unpredictable. Juries can return surprising verdicts—both higher and lower than expected. Settlement removes this uncertainty. You know exactly what you’re getting.
Faster Resolution: Medical malpractice trials take time to schedule and conduct. Settlement can resolve your case months or even years sooner than trial, providing compensation when you need it.
Reduced Emotional Toll: Trials are stressful. You may need to testify, face cross-examination, and relive painful experiences in public. Settlement avoids this ordeal.
Guaranteed Payment: A settlement check arrives relatively quickly after agreement. A trial verdict can be appealed, potentially delaying payment for years.
Privacy: Settlements can include confidentiality provisions. Trial verdicts are public record.
Lower Costs: Trials are expensive. Expert witnesses, trial preparation, and extended attorney time all cost money. While these costs typically come from your recovery (not your pocket), settlement means more of the recovery goes to you.
The Disadvantages of Settlement
Potentially Lower Compensation: Insurance companies settle to limit their exposure. Settlement offers are typically lower than what a jury might award in a successful trial.
No Accountability Finding: Settlement doesn’t include an admission of wrongdoing. If holding the defendant publicly accountable matters to you, settlement may feel unsatisfying.
Finality: Once you settle, you cannot seek additional compensation if your condition worsens or you discover new injuries. You must be confident the settlement addresses all your needs.
Pressure to Accept: Insurance companies sometimes make “take it or leave it” offers, creating pressure to accept less than your case is worth. Having an experienced attorney helps you resist unfair pressure.
Understanding Trial in Medical Malpractice Cases
If settlement negotiations fail, your case proceeds to trial. A jury of New Jersey citizens hears evidence from both sides and decides whether malpractice occurred and, if so, what compensation you deserve.
What Happens at Trial
Jury Selection: Both sides question potential jurors to identify bias and select a fair panel. In New Jersey, civil juries have six members.
Opening Statements: Attorneys outline what the evidence will show, setting the stage for the jury.
Presentation of Evidence: You present your case first—testimony from you, family members, and expert witnesses, along with documentary evidence like medical records. The defendant then presents their case.
Closing Arguments: Both sides summarize the evidence and argue their positions.
Jury Deliberation: The jury deliberates privately and returns a verdict. In New Jersey, five of six jurors must agree.
The Advantages of Trial
Potential for Higher Awards: Juries sometimes award significantly more than settlement offers, particularly in cases involving severe injuries, clear negligence, or sympathetic plaintiffs.
Full Accountability: A jury verdict includes a finding that the defendant committed malpractice. For many victims, this public acknowledgment of wrongdoing is meaningful.
Your Day in Court: Trial gives you the opportunity to tell your story, confront the defendant, and have your experience validated by a jury of your peers.
Setting Precedent: Jury verdicts send a message to healthcare providers about accountability, potentially improving care for future patients.
The Disadvantages of Trial
Uncertainty: You might lose. Even strong cases sometimes result in defense verdicts, leaving you with nothing after years of litigation.
Time: Trials take time to schedule and conduct. After trial, losing defendants can appeal, further delaying resolution.
Emotional Burden: Testifying about traumatic experiences, facing aggressive cross-examination, and waiting for a verdict is stressful and exhausting.
Expense: Trial costs—expert witnesses, exhibits, extended attorney time—reduce your net recovery even if you win.
Public Exposure: Trials are public. Your medical history, injuries, and personal life become part of the public record.
Factors to Consider When Deciding
There’s no universal right answer about settlement versus trial. Consider these factors:
The Strength of Your Evidence
How clear is the evidence that malpractice occurred? Cases with obvious negligence—wrong-site surgery, foreign objects left in the body, clear documentation of errors—are more likely to succeed at trial. Cases involving judgment calls or subtle deviations from the standard of care carry more risk.
Your attorney and medical experts can assess the strength of your evidence and estimate the likelihood of success at trial.
The Severity of Your Injuries
Generally, more severe injuries justify taking more risk. If your injuries are catastrophic and life-altering, the potential for a large jury verdict may justify proceeding to trial even if a decent settlement offer exists.
Conversely, if your injuries are significant but not catastrophic, a fair settlement offer may be more attractive than the uncertainty of trial.
The Settlement Offer’s Adequacy
Is the settlement offer fair given the circumstances? Your attorney can help evaluate offers by considering:
- The full extent of your damages (economic and non-economic)
- Likely jury awards in similar cases
- The specific facts of your case
- The risks of trial in your jurisdiction
If an offer is clearly inadequate, rejecting it and proceeding toward trial may be necessary to obtain fair compensation.
Your Personal Circumstances
Consider your own situation:
Financial Needs: Do you need compensation now for medical bills, lost income, or ongoing care? Settlement provides faster access to funds.
Health: Are you physically and emotionally able to endure a trial? For some people, trial is simply too taxing.
Stress Tolerance: How do you handle uncertainty? Trial outcomes are unpredictable. If uncertainty causes significant anxiety, settlement’s certainty may be valuable.
Desire for Accountability: How important is a public finding of malpractice? If accountability matters deeply to you, trial may be worth pursuing even if settlement would provide comparable compensation.
Jurisdiction and Venue
Where your case would be tried matters. Some New Jersey counties are more favorable to plaintiffs; others favor defendants. Jury demographics, local attitudes toward lawsuits, and the tendencies of specific judges all affect trial outcomes.
An experienced local attorney will understand these dynamics and factor them into settlement/trial recommendations.
The Role of Mediation
Mediation is a structured negotiation process where a neutral mediator helps the parties explore settlement. In New Jersey, many courts require mediation before trial.
How Mediation Works
Both sides present their positions to the mediator, who then works with each side separately to find common ground. The mediator cannot impose a settlement—any agreement must be voluntary.
Benefits of Mediation
Neutral Perspective: The mediator can offer objective assessment of both sides’ positions.
Creative Solutions: Mediation can produce settlements structured in creative ways that address both parties’ interests.
Confidentiality: What’s said in mediation stays in mediation. Parties can speak frankly without worrying about trial implications.
High Success Rate: Mediation resolves a significant percentage of cases, often with both sides feeling they achieved a fair outcome.
If Mediation Fails
If mediation doesn’t produce a settlement, the case proceeds toward trial. However, settlement discussions often continue even after unsuccessful mediation, sometimes leading to resolution before trial begins.
Making the Decision
When a settlement offer arrives, your attorney will explain its implications and provide a recommendation. But the decision is ultimately yours. Here’s a framework for thinking it through:
Calculate Your Total Damages: What are your medical expenses, lost wages, pain and suffering, and other losses worth? This establishes your baseline.
Assess Trial Odds: What’s the realistic probability of winning at trial? Even strong cases carry risk.
Consider the Expected Value: Multiply the likely verdict by the probability of winning. If there’s a 70% chance of winning $1 million, the expected value is $700,000. Compare this to the settlement offer, accounting for additional costs and time if you go to trial.
Weigh Non-Financial Factors: Consider your emotional and physical capacity for trial, your need for timely resolution, and the importance of accountability.
Trust Your Attorney’s Judgment: Experienced malpractice attorneys have seen many cases and understand the nuances that affect outcomes. While the decision is yours, your attorney’s recommendation carries significant weight.
When to Fight for More
Reject inadequate settlement offers when:
- The offer doesn’t come close to covering your actual losses
- The evidence strongly supports your case
- The defendant’s conduct was particularly egregious
- You’re prepared for the time and stress of trial
- Your attorney recommends proceeding
When to Accept a Fair Offer
Accept settlement when:
- The offer reasonably compensates your losses
- Trial carries significant risk
- You need resolution for financial or emotional reasons
- Your attorney believes the offer is fair or better than expected trial outcomes
- The certainty of settlement outweighs potential trial gains
There’s No Perfect Answer
Every case is different, and the settlement-versus-trial decision involves weighing factors that don’t reduce to simple formulas. What matters most is making an informed decision based on realistic assessment of your situation.
Work closely with your attorney throughout this process. Ask questions. Understand the reasoning behind recommendations. And when decision time comes, choose the path that best serves your interests—financial, emotional, and personal.
Whatever you decide, you deserve an attorney who will fight for fair compensation whether through skilled negotiation or zealous trial advocacy.
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Contact Gencarelli & Rimmassa Law Firm
At Gencarelli & Rimmassa Law Firm, we’re experienced in both settlement negotiation and courtroom litigation. We prepare every case as if it’s going to trial—because that preparation is what produces fair settlements and winning verdicts.
We work on a contingency fee basis—you pay nothing unless we recover compensation for you. We’ll guide you through every decision point, explain your options clearly, and advocate fiercely for your interests whether at the negotiating table or before a jury.
You deserve an attorney who’s ready to go the distance. Contact Gencarelli & Rimmassa today for a free, confidential consultation to discuss your medical malpractice case and learn how we can help you achieve the best possible outcome.
Call (201) 549-8737 today for your free case evaluation. We’re prepared to fight for you—however your case needs to be won.
