The short answer is yes you do. Let me tell you why...
You loved your doctor.
He was smart and funny.
He was confident.
You felt good every time you left his office.
This time, he told you that you needed a surgical procedure.
"It'll be a piece of cake," he said.
"I do hundreds of these procedures a year. No big deal!" he tells you.
"I'll have you in and out same day," he reassures you.
You believe him.
You trust him.
You know he has your best intersts at heart.
You easily say "Sure. Let's do it."
You don't get a second opinion.
You trust your doctor.
He'd never steer you wrong.
You awake from surgery in the intensive care unit.
You can't talk.
You've got a tube down your throat.
You've got IV lines in both of your arms.
From what little you can see, there are tubes coming from somewhere around your belly.
There's blood in one of the tubes.
In another there's some yucky looking yellow fluid.
Your belly feels really sore and uncomfortable.
You can't talk but you see nurses tending to you like worker bees.
They're saying things but you don't really understand what they're saying.
They all appear sympathetic.
You have no idea what's going on, so you go back to sleep.
You wake up two days later.
The tube is out and you're trying to talk.
"What's going on?" you ask a nurse adjusting your IV.
"Oh sweetie, there was a problem during your surgery. You're in ICU now. Your doctor will tell you more later," she says.
You see your doctor later that afternoon.
"I'm sorry but there was a problem during surgery. We somehow cut the bowel and had to fix it. In a couple of months you'll be good as new and running around," he tells you.
"A COUPLE OF MONTHS??? WHAT ARE YOU TALKING ABOUT? YOU SAID THIS WAS A ROUTINE PROCEDURE. YOU SAID YOU'D HAVE ME IN AND OUT SAME DAY! WHAT THE HECK ARE YOU TALKING ABOUT?" you begin to yell in a hoarse voice.
You learn the next day from a surgical resident that one of them accidentally cut your bowel during surgery. The problem was that this injury was nowhere near where your surgery was taking place. "This really shouldn't have happened," the resident whispers in a conspiratorial tone.
That makes you angry.
That makes you furious.
That makes your blood boil.
"Are you telling me this was preventable?" you weakly ask the surgery resident.
While looking quickly around the room to make sure nobody was within earshot she says "Yes, it was."
You are seething.
You can't do anything about it right now, so you put that thought on hold.
One week later you're discharged from the hospital.
Then you're at home recuperating.
A visiting nurse comes to your home each day.
To clean you.
To wash you.
To change your bandages.
This goes on for one and a half months.
Finally, you've graduated to being able to do this on your own.
But you still can't return to work.
It might be another two months before you're allowed to go back to work.
All this time you're frustrated.
You're upset.
You're angry.
You decide you have no choice but to sue your doctor.
To obtain money as a form of compensation for your injuries.
You do some online research to see who is the best attorney in New York to help you with your medical malpractice matter.
But you hesitate.
You don't really want to sue.
You've never sued anyone in your life.
You don't really want to make your doctors' life miserable by bringing a lawsuit against him.
So you have an idea.
You're going to return to his office for follow up.
When you do, you're going to confront him with his screwup.
You're going to ask him to compensate you for your harms and losses.
You're going to try and get your doctor to pay you before you ever have to file a lawsuit.
Your spouse tells you you're crazy.
"He'll never agree to it," he says.
"Don't waste your time. He'll never do it," your spouse says.
You don't care.
You want to confront the doctor.
You want him to know what he did.
You want to look him in the eye when you tell him how your injuries affect you on a daily basis.
You return to your doctor's office for post-operative follow up visit.
Your doctor asks you how you feel.
This is your signal to tell him.
You rant for almost ten minutes.
Your doctor stands there letting you talk.
His mouth is hanging open.
You finally get to the end and say "I need you to compensate me for the medical mistakes that were made during my surgery," you say.
Your doctor gets his thoughts together and says "I'm really sorry for what happened to you. I've never had this happen before. Yes, this should not have happened. I agree and again, I'm sorry. It's my fault even though it was the surgery resident who did this. I was supervising and it shouldn't have happened." he tells you.
"What can I do to make it better?" he asks.
"You can pay me," you say.
He thinks about that for a moment and then asks the inevitable question "How much?"
You throw out the first number that comes to your mind.
Your doctor is taken aback when he first hears the number but as he gathers his thoughts again, he turns to you and says "You know, that's fair. I'll do it."
You are in shock.
HE SAID YES!
HE SAID HE'D PAY YOU!
HOLY COW! "My husband was wrong," you think to yourself.
"But first, before I pay you, I need you to sign this piece of paper," he says quietly and then pulls a document from his desk.
He hands it to you.
It's titled "GENERAL RELEASE" at the top.
It has a lot of small print.
As you glance at it, it has lots of legal language.
You don't really understand what it says.
You don't really care what it says.
All you think about is that HE SAID YES! THAT HE'D PAY YOU!
You say "Of course I'll sign it," as you reach for a pen on his desk.
You sign at the bottom and date it.
Your doctor quickly grabs the document and writes in the amount of money he's agreed to pay you.
He then quickly signs the document on the bottom near your signature and goes to make a photocopy.
While you wait for him to return, you are so happy.
You can't believe he agreed to exactly what you asked for.
Now you won't have file a lawsuit against him.
Now you don't have to spend two to three years in litigation.
Now you can take that money and pay your medical expenses.
Maybe there will be a little left over for you and your husband to go on a vacation.
Your doctor returns a few minutes later with the signed document in an envelope and to top it all off, he actually went to get a check at the same time!
"Should I make it out to just you or you and your husband?" the doctor asks you.
In a split second you say "Just me."
Thirty seconds later, the doctor has written out the check to you and hands it to you.
He apologizes once again.
"I'm so sorry this happened. I hope you use the money well and wish you the best," he tells you with all sincerity.
You actually hug him goodbye and then leave.
On the way home, you stop at the bank and immediately deposit the check.
You fail to read the memo section that said "For valuable consideration, FULL & FINAL PAYMENT for this patient's injuries."
Even if you had read it, you wouldn't have cared.
You got what you wanted.
After the check clears, you can do whatever you want with the money.
You return home and excitedly call your husband at work.
You interrupt his meeting to tell him the good news.
"I GOT THE CHECK. HE PAID ME! HE PAID ME EXACTLY WHAT I ASKED FOR!" you animatedly tell your husband on the phone.
He's a bit cautious.
He's wondering why this was so easy.
He's wondering why your doctor eagerly handed over a check within minutes of her asking.
He's wondering what he doesn't know that the doctor does know.
Your husband is cautiously optimistic.
"That's great honey. We'll talk more about it tonight," he says.
Over the next few days, your husbands' questions start to gnaw at you.
You don't have good answers for any of his questions.
You don't know why your doctor was so quick to accept your offer.
You don't know why your doctor was so quick to return with a check for you.
Nor can you answer why your doctor paid you immediately after signing that release.
Your husband finally convinces you to talk to an attorney and have that document you signed looked at.
You agree to meet with an attorney.
You find an attorney willing to talk to you.
You tell this attorney your story.
He listens carefully.
Then you relay to him what happened during your follow up visit to your doctor.
You then show him the general release that you and your doctor signed.
He reads it carefully.
When he's done, he looks up and asks you a question.
"Did you cash his check?" he asks.
"Yes. Immediately. I cashed it on the way home from his office," you say quickly.
The attorney has a worried look on his face.
"Let me ask you a few questions, Ok?" he says.
"Sure," you say.
"Where did you come up with the amount of money that you asked him for?" he wonders.
"I just blurted out the first thing that came to mind," you say truthfully.
"Did any of your treating doctors tell you what will happen to you medically in the future?" he asks.
"No," you say, wondering why he'd ask you that question.
"Did you ask any doctor whether there's a chance you're going to need additional medical or surgical care for your injuries?" he asks pointedly.
"No, I didn't," you say, thinking that he's starting to make you feel bad for not asking these questions.
"Did you read the document titled General Release before you signed it?" he inquires.
"No, I didn't. It had a lot of fine print and a lot of legal mumbo-jumbo that I didn't really understand and I was so excited about getting the money that I didn't think it was necessary," you answer.
The attorney definitely looks disappointed now.
"Do you have a copy of the check?" he asks.
"Yes. Here it is," you say, happily handing it over to the lawyer.
He reads the check and another disappointing scowl forms on his face.
"What's the matter?" you ask.
"Did you read what's written in the memo portion of the check?" he asks you instead of giving you an answer.
"No, why?" you say.
"It says 'For valuable consideration, FULL & FINAL PAYMENT for this patient's injuries.'"
"Do you know what this means legally?" he asks.
"No, not really. I wasn't concerned with it. I just wanted to deposit it so it cleared before the doctor changed his mind," you say forcefully and proudly.
HARSH REALITY HITS HOME
"Let me share with you the answers to your questions that brought you here today," he says confidently.
"First, it's extremely rare in New York to get a doctor to agree to settle a case before you've filed a lawsuit. Extremely rare. In my career of almost 30 years, I have seen it only once. Then it was clear cut what happened. There was also no question about how bad the damages were as well," he says.
"The reason why your doctor raced to get you a check is because he knew that your injuries were worth FAR MORE than what you had asked. He had to have known that. This was a bargain to him. He must have thought it was his lucky day. If he could avoid a lawsuit and settle with you for pennies on the dollar for what your injuries were really worth, he'd eagerly pay you right then and there. That's what he did."
"Your injuries are worth about 50 to 100 times what he paid you," the lawyer says simply.
Your heart drops.
You feel like you just got punched in the gut.
"WHAT? BUT HOW? WHAT?? OH MY GOD..." You say trailing off.
The document that he had you sign prevents you for suing him for any injuries arising out of his care and treatment of you. It says you can NEVER sue him. You can never ask him for any additional money even if you incur additional expenses and care and treatment for your injuries. NEVER. EVER. Understand now?" he asks you.
It's beginning to sink in.
Now you're beginning to see why your doctor was so eager to pay you immediately.
That general release was to make sure this was the only time he'd ever have to pay you.
You can never reopen this.
It's done.
It's all legal.
You should have read it.
You should have questioned it.
You should have known better.
But you didn't.
"I understand," he says sympathetically.
"The memo portion of the check he gave you also seals the deal by telling you this is the full and final payment for your injuries. By cashing it and taking the money, you implicitly acknowledge that the money is for full and final payment as compensation to you.
"By the way, do you know the tax implications for this money?" the lawyer asks you.
"What do you mean? Do you mean I have to pay taxes on this amount?" you ask wondering if this is really happening.
"Was this money to pay for your medical expenses? Was it to pay for your pain and suffering?" he asks you.
"I'm not sure. We didn't discuss it. I guess some was for my medical expenses and I guess the rest was for my pain and suffering," you answer.
"Well, that's a problem," the lawyer tells you.
"Whatever part of it was for repayment of your medical expenses, that is likely taxable," he says as your heart sinks lower.
"The part that is for pain and suffering is not taxable," he tells you.
"Is there any way to reverse this and bring suit against him for the real value of my injuries?" you ask desperately.
"The short answer is no, there isn't," he tells you.
"The longer answer is possibly, but it doesn't look good," he says.
The lawyer continues...
"You see, you're an adult. You made him an offer. He agreed to your offer. He agreed to pay you what you wanted. In exchange for that payment, you voluntarily agreed never to sue him for this incident. You agreed that he would not be responsible for any of your problems in the future arising from this incident. He gave you time to read the document. He even recommended that you have an attorney review it and you declined. You chose not to read this. There's no coercion. There's no gun to your head to sign this. You did this voluntarily. Of your own free will. You also gave up your right to understand what you were signing and he gave you the opportunity to have an attorney review it before signing it."
"Then, when you rushed to deposit his check, you failed to notice it was for full and final payment for the injuries you incurred because of his actions. By endorsing and signing his check, you agreed that's what this payment was for. You took his money believing you were victorious because of the speed at which he agreed to pay and the amount he agreed to pay you."
"If we were to try and have this agreement voided we'd have to show many things...all of which would be extremely difficult and likely impossible to prove. We'd have to prove fraud. We'd have to prove coercion. We'd have to prove that you were not competent to make these decisions; that you were not in your right mind. In my professional opinion, I don't think you stand a chance of reversing this," the lawyer tells you with some sadness.
Your desire to settle with your doctor before filing a lawsuit was admirable.
For both you and your doctor.
But in this instance, you got shortchanged.
Your family got shortchanged.
There was no deceit here.
There was no fraud here.
There were no delyaing tactics here.
You demanded an apology and got one.
You demanded your doctor accept responsibility for what happened and he did.
You demanded payment to compensate you for your injuries.
Your doctor invited you to make an offer.
He agreed to your offer.
Your doctor didn't force you to wait weeks or months to pay you.
He ran to get a check immediately.
He asked you who the check should be payable to.
You eagerly said "ME!"
Not realizing that your husband may have had his own separate claim for loss of martial services from your injuries.
You took that check and raced to the bank to deposit it.
You were hoping it wouldn't bounce.
You also failed to realize the significance of the memo on the check when you signed and deposited that check.
You also signed away many of your legal rights when you signed that general release without knowing the true extent of your injuries.
Unfortunately for you, the deal you made was not a good one for you or your family.
But it was the deal you made.
At the time you made it, it sounded fantastic.
After speaking to an attorney, you now realize that this was not ideal.
What's the bottom line?
Yes, you can settle your claim against your doctor without ever filing a lawsuit.
But if you choose to do that, your best bet is to consult with an experienced medical malpractice attorney to see if this is the right deal for you and your family. A better option is to have your attorney conduct the settlement discussions for you.
