Archive for the ‘Medical Malpractice Defense’ Category

Tips for Preventing a Medical Malpractice Lawsuit – Document It!

Tips for preventing a medical malpractice lawsuit: document it!

Over at the Monthly Prescribing Reference (MPR) website, the story is told of a doctor who was sued by a patient in a situation where there was, in fact, a less than ideal outcome, but not due to fault or malpractice on the part of the doctor or any health professional.  The MPR article uses this story to make the point that sometimes lawsuits happen wholly apart from any malpractice, because often patients believe (and are sometimes encouraged to believe by attorneys) that any adverse outcome must be someone’s fault.  They fail to recognize that even under best practices and conformity to all professional and industry standards, there are risks associated with any procedure.  There is no such thing as riskless medicine. [Read more →]

Medical Malpractice Litigation – Two Additional Resources

Medical Malpractice Litigation – A Follow Up

As a follow up to our previous post on What to Expect in a Medical Malpractice Lawsuit, we present the following video from The Doctors Company.

What to Expect From Medical Malpractice Litigation

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What to Expect in a Medical Malpractice Lawsuit

While no doctor wants to think about the prospect of being sued, the reality is that many will be, and that being prepared for the process can offer real peace of mind. 42% of Physicians have faced a medical malpractice lawsuit over the course of their careers; likewise, 90% of general surgeons over the age of 55 have experienced a lawsuit.

On the other hand, it is comforting to remember a few other statistics: “Fewer than 8% of medical malpractice cases ever reach a jury. About two thirds of claims are dropped, dismissed, or withdrawn, while about 27% are settled. Physicians prevail in 80%-90% of cases that reach the trial stage.”

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What Communication Should I Expect From My Defense Counsel?

The communication between defense counsel is a critical component of a successful defense of a medical malpractice claim.  The defendant-physician can play a pivotal role in directing defense counsel to witnesses, medical literature, theories, and experts.  The challenge for the defendant-physician is how to establish the expectations for communication with defense counsel during the progress of a claim.

Begin at the beginning

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Receiving a Medical Malpractice Insurance Claim

Medical practices today strive to provide the highest quality services to their patients. Unfortunately mistakes happen and not all patients are satisfied with the outcome of their medical situation. This is why physicians, surgeons, nurse practitioners, physician assistants, and other medical providers carry physician malpractice insurance. The unfortunate side of our industry is when a physician or medical provider receives a claim or an incident happens.  The first thing I always tell my physicians is that this is why you have paid for medical malpractice insurance coverage, so use it.  The first thing you, as a physicians, should do is contact your broker or the medical liability insurance carriers legal/claims department immediately. Once you have contacted your broker or carrier, the next step is to speak to no one else.

Seek Guidance During the Claim Process

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Who Does My Malpractice Lawyer Represent?

Does My Attorney Represent Me or My Malpractice Insurance Company?

Great question!  This issue has been debated in some form for as long as I have practiced in this area (over 20 years), and in each state where I have practiced.  It is a fair assumption that this debate began well before I became a member of the Bar, and will continue long after.  Since the issue is not settled, the best this brief article can do is to summarize the issues, and offer some guidance to physicians who have concerns about their relationship with their assigned defense counsel in a medical malpractice claim.  In short, the debate springs from the fact that, in most medical malpractice claims, the malpractice insurance company selects, retains, and pays defense counsel for the physician involved in a medical malpractice claim.  In fact, since most medical malpractice claims are resolved without any indemnity payment, the defense purchased with the premiums for medical malpractice coverage may be the most important component of medical malpractice coverage.

The nature of this “tripartite” relationship (insurance company, physician-insured and retained defense counsel) can vary state to state.  Some states have clear and unambiguous rules that tell lawyers, in no uncertain terms, their exclusive duty of loyalty is to the physician they represent even though they have been retained by an insurance company to do so.  Other jurisdictions take the position that the lawyer owes a primary duty to the physician, but also a secondary duty to the insurance company. [Read more →]

The Impact of Caps on Non-Economic Damages on the Defense of Medical Malpractice Cases

Non-Economic Damages – The Nature of the Debate

Perhaps no other issue in the debate about medical malpractice liability over the last decade or more has engendered more discussion than the wisdom and impact of limitations (i.e caps) on the amount of recoverable damages in medical malpractice claims. Most of the debate centers on state legislatures passage of limits on non-economic damages; that is, the category of damages we often refer to as “pain and suffering.” In addition to pain and suffering, however, non-economic damages also include grief, and the loss of companionship, counsel, advice, and emotional support. These are distinct from economic damages, which typically include lost wages, medical and hospital bills, special equipment and/or therapy, funeral expenses, and financial support. Most states do not impose caps on economic damages.

Currently, over 30 states have statutory caps on non-economic damages. Some of these caps apply to all personal injury claims, and some are limited to medical malpractice claims. The amounts of the caps differ from state to state. The lowest damages caps are in the $250,000 range; the highest are $1,000,000. Some caps vary according to the claimed injury. Some caps have automatic escalators; others don’t. Some caps apply per injured person; others apply per healthcare provider. Some caps apply to reduce verdicts that exceed the statutory cap; others apply so that the jury knows the applicable caps as they deliberate. [Read more →]