If you are among those who assume that settling or going to trial is purely the family’s call to make, then you are part of the wrong group. For a child with cerebral palsy, there’s actually a third party in the room who has the final say either way: a judge.
Before any trial vs settlement decision becomes final, Ontario law requires a court to independently confirm that it protects the child.
In this blog, we unpack what genuinely separates these two paths, the protections built specifically around a child’s claim, and how families weigh a decision that shapes years of care.
The Step Most Families Don’t Know About: Why a Judge Has to Approve Your Child’s Settlement
Here’s what surprises most families: even after months of negotiation, a lawsuit settlement involving a child isn’t binding the moment both sides agree.
Under Ontario’s Rule 7.08, no settlement made on behalf of a minor takes effect without a judge’s approval, regardless of what the family and the defendant have negotiated.
The court reviews the litigation guardian’s sworn statement explaining why the settlement serves the child’s interests. The lawyer’s own affidavit sets out their position, and medical evidence establishes the child’s prognosis and future needs.
Judges have refused settlements they considered unclear or insufficiently supported, requesting additional documentation before approval. This means a cerebral palsy settlement is never purely a private arrangement between families and insurers. Instead, a judge independently confirms if it serves the child, separate from what either side wanted.
What a Trial Involves That a Settlement Avoids
A trial is a longer, more exposed process than most families expect. The litigation process includes discovery, where both sides exchange expert reports on how the injury occurred and whether it was preventable.
Pre-trial conferences follow, aimed at narrowing the issues or resolving the case before it ever reaches a courtroom. If no resolution emerges, the case proceeds to a full hearing, where a judge or jury weighs the evidence and reaches a verdict that neither side controls.
Court proceedings are also public under Ontario’s open-court principle. This means more of a family’s medical history becomes part of the public record than in a settlement reviewed in writing.
Perhaps most importantly, a medical malpractice lawsuit that proceeds to trial carries real risk. If the evidence doesn’t persuade the court, a family can walk away with nothing after years of litigation. This is the genuine trial vs settlement trade-off that families need to understand early.
The Real Trade-Off: Certainty Now Versus Possibility Later
Certainty is what a lawsuit settlement offers that a trial cannot. It usually provides faster access to funds for therapy, equipment, and care a child may need long before a trial would ever conclude.
A trial holds out the possibility of a larger award, and some cerebral palsy verdicts have exceeded comparable settlement values. For example, our legal team recovered over $15.6 million for a girl with cerebral palsy caused by an obstetrician’s botched forceps and vacuum delivery.
But that possibility comes with risks. A judge or jury could rule against the family entirely, or a verdict could be appealed, thus pushing resolution years further away.
Now, this isn’t a question of which path is objectively better, as it centers more on how much uncertainty a family can reasonably carry while a child’s needs are immediate. Understanding this trial vs settlement tension early helps families make a decision aligned with their own circumstances.
How a Structured Settlement Can Shape Decades of Care
Settling a case doesn’t always mean accepting a single lump sum. Once a court approves a lawsuit settlement, funds can be structured to pay out over time rather than all at once. It is an approach increasingly shaped by recent updates to Ontario’s settlement-approval rules designed to protect a child’s long-term interests.
A structured medical malpractice lawsuit resolution can be built around a child’s anticipated milestones, like school transitions, mobility equipment replacement cycles, or the shift into adult care services. This turns a settlement into something closer to a long-term financial plan rather than a single number.
The Evidence That Shapes Either Path in a Medical Malpractice Lawsuit
What actually determines whether a case settles out of court or proceeds to trial usually comes down to the strength of the evidence itself.
Expert opinion that establishes what the standard of care required, and whether it was met, carries weight. So does how clearly causation can be shown, connecting the alleged negligence directly to the child’s condition.
A well-documented life-care plan, outlining future medical, therapeutic, and support needs, often shapes how an insurer responds. When the evidence in a medical malpractice lawsuit is strong and well-supported, insurers are typically more willing to negotiate a fair resolution. If the evidence is contested or causation is unclear, cases are far more likely to proceed toward trial.
Questions Worth Asking Before You Decide
Before choosing a path forward, it helps to ask a few honest questions:
- How urgently does your child need funds for therapy, equipment, or care that can’t reasonably wait years for a verdict?
- How strong does your lawyer believe the evidence supporting your medical malpractice lawsuit actually is?
- What range of outcomes has your legal team described if the case proceeds to trial rather than settling?
- How comfortable is your family, realistically, with the unpredictability and extended timeline that a courtroom process involves?
There’s no universal right answer here. The right path depends on your child’s needs, your family’s circumstances, and how much risk you’re prepared to carry for the possibility of a better outcome later.
With Decades of Experience, Sommers Roth & Elmaleh Guides Families Through This Exact Decision
Choosing between out-of-court settlement and trial is one of the most consequential decisions a family will make in a cerebral palsy claim, and it shouldn’t be made without experienced guidance.
Sommers Roth & Elmaleh has spent decades helping Ontario families find a clear path through these medical malpractice lawsuit decisions. Our legal team weighs the strength of the evidence, the urgency of a child’s needs, and what a fair resolution should actually look like.
Every family’s circumstances are different, and we take the time to explain what each path realistically means for your case. Talk to us today at 1-844-940-2386 or reach out online to discuss which path is best for your circumstances.
Frequently Asked Questions
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If we settle, can the compensation amount ever be increased later if our child’s needs grow?
Generally, the answer is no. A court-approved settlement is final, which is why structured settlements and detailed life-care plans matter so much in anticipating future needs before agreeing to terms.
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Does going to trial mean our family has to testify in court?
The common answer is yes. Parents or guardians may need to testify about the child’s condition, daily care needs, and the impact of the injury, alongside expert and medical witnesses.
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Can we change our minds partway through negotiations and still go to trial?
Yes. Settlement negotiations can stop at any point before an agreement is finalized and approved by a judge, and the case can proceed to trial if no fair resolution is reached.