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Insolvent Malpractice Insurers Leave Everyone Holding the Bag

By William A. Krais
January 27, 2006

Whether you represent the patient or physician in a medical malpractice case, there are always significant repercussions when the physician's malpractice carrier becomes insolvent. Naturally, plaintiffs in such cases are concerned as to whether and how a judgment will be paid. Physicians are just as concerned that they may be personally responsible for some portion of a judgment. With a growing number of medical malpractice insurance carriers facing difficult financial times nationwide, parties are experiencing those concerns with increasing frequency.

Recently, state courts in Pennsylvania, New Jersey, and Minnesota have addressed some of these issues. The Pennsylvania case was a medical malpractice case, while the others were not. Nevertheless, the lessons learned from each of those cases apply to the medical malpractice context.

In each case, the tortfeasors' insurers became insolvent. Each state had a guaranty fund that covered policyholders up to a maximum amount in the event that an insurer became insolvent. The plaintiffs pursued the tortfeasors individually for judgments that exceeded or were not otherwise covered by the state's guaranty fund, while the tortfeasors argued that their liability should be capped by the amount provided by the guaranty fund. The courts in each case disagreed with the tortfeasers and instead held them personally liable for any uncovered amount. While the reasoning in each case is sound, the decisions expose the obvious consequences to both plaintiffs and tortfeasors when carriers become insolvent.

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