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New Jersey Lawyer Liable for Not Telling Medical Malpractice Clients of Settlement Offer


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3/30/2010
Gerry Oginski
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According to Law.com, a Mercer County, N.J., jury on March 22 found veteran litigator Gerald Stockman liable for legal malpractice for failing to convey a $400,000 offer to clients in a personal injury case, which ended in a verdict substantially lower.

Any attorney who handles personal injury cases has an obligation and ethical responsibility to convey to their client any offer that is made to them by the defense. It is then the attorney's obligation to discuss with them the merit and value of the offer. Ultimately, is the client's decision about whether to accept or reject an offer. However, like with many things, it's all in the presentation.

What do I mean?

I will often be questioning a doctor and ask how they presented the treatment plan. The doctor will usually say that he made various recommendations, and ultimately it was the patient's choice about which procedure to choose. This explanation usually rings hollow since most patients do not have any medical knowledge and rely entirely on the physician to make a recommendation.

There is a big difference between a doctor saying "Don't worry, we're going to do this procedure, and you'll be fine." Compare that statement to "You have the following three alternatives in this situation; you can do procedure number one, which has the following risks and benefits, or you could do procedure number two which has these limited risks or you could do procedure number three which has no risks. Which would you prefer?"

Likewise, when an attorney presents a settlement offer to their client, it's all about the presentation. An experienced attorney will tell the client about the settlement offer, then give his advice about what they think of the offer and whether it should be accepted. The client will then make a decision. Often, the client relies on the attorney to offer professional advice and experience since they have been in this position many times before.

In this case, there was a clear dispute between the experienced medical malpractice attorney in New Jersey, and the client's recollection of events immediately after trial. A jury listening to the legal malpractice case evidently believed the victims and not their attorney.

In cases that have significant settlement offers, a good attorney will often put their client on the witness stand, outside the presence of the jury, and under oath, ask their client whether they have been advised of the large settlement offer, and whether they are rejecting it of their own free will. This protects the attorney in the event a verdict comes in for less than the offer or, a verdict comes in for the defense. This way, the client can never turn around and say that he or she was never told about the settlement offer.

Category: Medical Malpractice


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