A plaintiff in a civil action may recover compensation by a settlement, or by judgment granted by the court.

Probability of Settlement

In our experience, it is much less likely to recover compensation by settlement in medical malpractice cases than in other types of civil litigation suits (such as motor vehicle accident lawsuits). 

However, many medical malpractice and product liability actions result in fair settlements when the plaintiffs are advised and represented by counsel who are willing and able to effectively prosecute those actions through examinations for discovery, trials and appeals (if those steps are justified by the probability of obtaining judgment and the likely amount of any judgment that may be obtained). 
 

Probability of Judgment

In order to obtain a judgment, it is not sufficient for the plaintiff to establish that the treatment of the patient (for example, by medication, surgery or other procedure) was ineffective or harmful. Rather, there are a number of specific elements that must be established in each particular case. Thus, the plaintiff can obtain judgment by establishing the elements of a cause of action:

• in negligence for breach of the standard of care
   
• in negligence for breach of the standard of disclosure
   
• for breach of a contract to provide medical services in accordance
  with the standard of care
   
• for battery
   
• in negligence for product liability

The probability of the plaintiff obtaining a judgment should be assessed on the basis of the evidence available to establish the elements of the cause of action (see evidence on the elements of a cause of action in negligence for breach of the standard of care and see evidence of the elements of a cause of action in negligence for breach of the standard of disclosure).

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