Settlement woes

Jolanta Budzowska        11 October 2016        Comments (0)

A couple days ago I came across an interesting article about settlement issues in medical negligence cases in the UK (link below). It is claimed by the Society of Clinical Injury Lawyers chairman that the NHSLA (the National Health Service Litigation Authority) settles 76% of all cases that could have been settled pre-proceedings, post-proceedings. Later on, the article does continue to mention that the NHSLA spokesman disagrees with this standpoint, and that actually the cases could not have been settled pre-litigation.

Naturally, if such a vast majority of cases should have indeed been settled pre-proceedings, but weren’t, there is a clear issue, which results mainly in significant expenditures that could have been easily avoided. However, what strikes a Polish personal injury lawyer reading this article is mainly the sheer amount of medical negligence cases that end in a settlement.

This felt like a good opportunity to discuss the settlement situation in personal injury cases in Poland. To be frank, the seemingly dire situation, described in the aforementioned article, is really no big deal when compared to what the injured have to face in Poland. While there are some exceptions (particularly in product liability cases), the unfortunate truth is that the injured in Poland cannot count on their claims being settled at all (neither pre-proceedings nor post-proceedings), regardless of how strong their case is. Instead, they are almost always forced to go through a full court trial (which in Poland, mind you, usually lasts approximately 3 – 4 years in medical negligence cases).

Why is the settlement situation so difficult in Poland? The answer to that question is not exactly straightforward, however what can be said with absolute certainty is that it is in no way a result of any hesitance or lack of cooperation on part of the injured (or their attorneys). Knowing how lengthy a trial can be in Poland, both our clients and ourselves are always open to settlement negotiations.

What is more, the settlement issues do not exist for a lack of appropriate provisions of the law. All the necessary tools for the parties to settle – be it in court or out of court – are absolutely in place.

What actually makes settling impossible in most cases is that the defendants nearly automatically, each and every time, deny liability. Even private medical expert reports, as well as verdicts of special Polish commissions that have been created to review medical negligence cases out-of-court, which confirm that the claims are justified, are almost always not enough to even get the defendant to sit at the table. On the rare occasions that they do, it is only to propose compensation in an amount so greatly undervalued that no sane person would find acceptable, and that no competent lawyer can recommend as a good deal.

The defendants proceed to lose in court after years of litigation, which also does not seem to have any impact on the overall mentality, and on the situation in other, similar cases. This is where I find it difficult to provide a sound explanation, and while we have our guesses as to why this is the case, they are only that – guesses.

While I definitely do not want to underappreciate the serious issue that is described in the article, it should come as no surprise that as a personal injury lawyer in Poland I would give a lot for the settlement situation in Poland to be at least similar to what can be observed in the UK…

Link to the article: http://www.litigationfutures.com/news/clinical-lawyers-call-across-board-review-figures-show-nhsla-settling-cases-post-issue 

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