You sued your doctor.

You claim he was careless.

You claim his carelessness caused you injury.

You claim your injuries are permanent.

Your doctor and his lawyer disagree.

They claim you're wrong.

They claim he did nothing wrong.

They claim that nothing he did (or didn't do) caused or contributed to your injuries.

They also claim that even if he did something wrong, so did you.

Your doctor claims that even if he did something wrong and you did too, your injuries aren't really that bad.


That means your case proceeds forward with discovery.

Documents to be exchanged.

Medical records to be produced.

Each side must be questioned by the opposing attorneys, under oath.

Legally, that's known as a deposition or an examination before trial.

A physical examination must be done to see how bad your injuries are now.

Then, after almost two years, you tell the court that your case is 'ready for trial'.

You now have another 6-9 months to wait before multiple settlement conferences.

If your case cannot be settled, then you will be given a definitive trial date for jury selection.

Six months go by.

Your attorneys are called into court for pretrial settlement conferences.

The judge wants to know where each side stands.

Did your attorney make a settlement demand?

Is the defense will to negotiate?

Does the defense have money to offer?

It turns out that you have a good case.

You knew that.

Your medical expert knew that.

Your attorney knew that.

The defense attorney knew that.

The defense's medical expert knew that.

The doctor's insurance company learned you had a good case and finally, after two years, made a calculated business decision to try and settle your case now, before getting to trial. They figured the risk of going to trial and taking a verdict outweighed the opportunity to settle your case for a 'reasonable' number.

They informed the judge they were willing to negotiate.

Your attorney was pleased that they realized they'd be better off settling this case now instead of letting a jury put a value on your injuries.

However, before negotiations could even move forward, your attorney had only one condition to settling your case...assuming of course they could reach an agreement on the value of your case.

The judge wanted to hear what this pre-condition was to settle.

"My client asks that her doctor who caused her harm give her a written apology for his carelessness and the injuries he caused."

The defense attorney was taken aback.

The judge smiled.

He'd been through this before.

This defense trial lawyer hadn't.

His first gut reaction was to immediately say "Absolutely not! I will not allow it..."

"Then we can't settle this case Judge," I reply.

The defense attorney looks as if he's torn.

Torn between getting your case settled and torn with your pre-condition to get a written apology.

The defense lawyer begins to explain to the judge why he cannot agree to this request.

"If my client were to issue a written apology for his carelessness, this could come back to haunt him in a future legal proceeding. This is an admission of liability. The whole purpose of settling this case before going to trial is to resolve it without the need to get a jury to decide who, if anyone, is legally responsible. In addition, settlements often come with a stipulation that the settlement is NOT an admission of responsibility," the defense lawyer argues.

He continues...

"If my client were to issue a written apology, there's a good chance that apology would wind up on the internet. On some website. On the plaintiff's blog. Maybe on the plaintiff's attorney's website. Then, it could certainly harm his reputation and his business," the defense attorney continued.

"Lastly, if my client, the doctor, were to make a written apology, it would likely set the bar for what other litigants should require before settling their cases. That would create a cascade effect that would impact other doctors as they seek to defend these medical malpractice cases here in New York."

The judge carefully considers this argument.

Some of what he argues makes sense.

Some does not.

The judge is sympathetic.

To both sides.

He understands they both want to settle.

He understands they have reached an agreement on the settlement value of this case.

He understands why the injured patient, the plaintiff wants a written apology.

He also understands the defense's reluctance to write such an apology.

What is the judge to do?

Since the litigants are not yet at trial and since the judge is not being asked for a legal ruling on this issue, anything he says about this issue is merely advisory.

He tries to fashion an agreement that will give the patient her written apology while at the same time get guarantees from the patient and her attorney that this document will not be disclosed or released to anyone, for any reason.

The injured patient's attorney is reluctant to make a side-deal on this issue.

At the same time, he knows his injured client wants to settle.

She's already agreed to settle for less than what he has now been able to negotiate for her.

That means she'll now get more.

He knows that getting her a written apology is really a 'moral victory' that has no monetary value.

He also knows that in some cases this moral victory is more important than any money he can negotiate for her.

He decides, after weighing all the factors, that she will appreciate the additional money and she will get what she wants at the same time.

She has no desire to publicize this case in the media.

She doesn't want to run around telling people she settled her case for $2.5 million dollars.

She doesn't even want to tell her relatives that she brought a lawsuit, much less tell them about her settlement.

In all likelihood, she's going to take his written apology, frame it and hang it in her little study at home.

To glance at it from time to time.

As a reminder of who did what to whom.

As a reminder of who was really responsible.

As a reminder that she did nothing wrong to cause her injuries.

He agrees to this side agreement not to publish the written apology.

The defense attorney has just one more request concerning this apology.

He wants this agreement to have some consequences if it's broken.

He wants to make sure that if the patient violates the non-disclosure agreement, that the patient somehow be punished.

The judge steps in now to offer a solution.

"If the patient publicizes the apology, the patient agrees to forfeit 10% of her settlement within 30 days," offers the Judge.

The patient's attorney is not thrilled with this condition.

The defense attorney thinks he and his client and the insurance company can live with this restriction and penalty.

The patient's attorney wants a better deal and says "No, I'll only agree to 2.5% of the net settlement."

There's a huge difference between the gross settlement and the net settlement.

The net amount is what the patient will receive after all the attorney's expenses have been repaid to his law firm and after the attorney's fee has been calculated.

The net amount really is what is left over for the client.

The gross amount is the total settlement amount of $2.5 million.

The judge looks to the defense attorney to see if he can live with 2.5% as a penalty clause.

The defense lawyer thinks a larger percentage is warranted.

"Let's make it 5%," he says.

The patient's attorney settles in and says "No, 2.5% or no deal."

Again, here's the line in the sand.

Will the defense lawyer blink?

Will he agree to this negotiated side deal?

Will he agree to this penalty amount in order to close this case?

He does blink.

He finally agrees with a sigh.

It's over.

The attorneys shake hands.

The judge calls for a court stenographer to come into his private chambers.

He wants to put this agreement in writing.

It's just one more case off his plate.

It's a creative way to give everyone what they want...almost.

The patient got a very good settlement.

The doctor didn't have to pay anything out of his own pocket to settle as the entire settlement will be paid out of his existing medical malpractice insurance policy.

The patient gets her written apology.

The doctor and his attorney get assurances that his apology will not be shared with anyone.

They also get the assurance that if this apology is released, the patient will be required to give to the doctor 2.5% of the net settlement amount she will receive. 

That's a very substantial amount.

That insures that there is a financial penalty to disclosing this apology.

It's really a guarantee.

Whether this guarantee can be legally enforced is a subject for another day.

In all likelihood, it will be.

To learn about another possible outcome when the injured patient wants an apology, I invite you to watch the quick video below...


Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer