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 →]