Surviving the Medical Malpractice Claim

NFL Commissioner Roger Goodell confidently strides to the podium, opens an envelope and intones, “With the number one pick in the 2014 NFL draft, the Houston Texans select ' ” Millions of eyes watched the latest NFL draft to see players picked by different teams and to critique those choices. Truth is, millions of dollars and reputations are at stake in making sound selection decisions.

In this respect, the NFL draft has much in common with selecting defense counsel in medical malpractice cases. Like any NFL franchise, the physician and medical malpractice insurer want to make sure that they make sound “first-round draft picks.” These picks can be successful or they can be a bust. Making bone-headed selections can cost millions of dollars in professional reputations if an attorney ends up mishandling a medical malpractice case.

Successful defense of a medical malpractice case is a team effort. While the defendant physician is the focal point, a key team member is the defense attorney who will defend the physician and the standard of care exhibited in the case. Thus, a key step in surviving and winning a medical malpractice lawsuit is wisely choosing the defense attorney who may ultimately enter a courtroom on the physician's behalf to defend what the practitioner did or did not do.

The Medical Practitioner's Role

Since the stakes are high if poor decisions are made, one aspect of managing medical malpractice risk involves selecting quality counsel for legal defense. Selecting outside counsel is not a task for defendant physicians to abandon to the insurance company. The physician has a legitimate role in picking “legal eagles.” Poor choices in selecting counsel can lead to botched results, whopping verdicts, huge settlements, eye-popping legal fees or a tainted reputation.

By contrast, smart choices in counsel selection will produce better case outcomes, manageable costs and better service. Smart choices are more likely when practitioners have the right tools and questions for conducting the search.

When might defendant physicians involve themselves in selecting defense attorneys? At least four scenarios could arise:

1. The doctor has been defended by another attorney in the past, by a prior insurer, and feels comfortable with that lawyer;
2. A conflict of interest exists between the doctor and the insurance company, which has “reserved coverage rights” and states that some parts of the claim may be excluded (Insurers may “reserve rights” in response to excluded claims ' such as battery ' or if some treatments giving rise to the claim occurred before the policy start (inception) date);
3. The potential ' or probable ' jury verdict/award exceeds the doctor's insurance limits; or
4. The physician lacks confidence in the defense attorney chosen by the medical malpractice carrier and insists on different counsel.

What to Consider

What criteria should doctors ponder when vetting defense attorneys? Here are seven vital areas to assess:

1. Subject-Matter Expertise

Most crucial is that the attorney have subject matter expertise in defending medical malpractice cases. Even better is if the attorney has expertise in the doctor/defendant's area of medical specialty, whether it be radiology, nephrology or bariatric surgery. Some defense attorneys specialize in specific areas of medicine, ranging from Botox injections to laparoscopic surgery to chiropractics. Ask the attorney/candidate to offer an overview of subject-matter expertise in defending medical malpractice cases, and inquire whether that expertise includes any area of medical concentration.

2. Peer Recommendations

Network with fellow practitioners to see who they recommend as an effective defense attorney. Cull these from exchanges at medical conferences, seminars and from informal chats with colleagues. If the same attorney names keep surfacing repeatedly, that is a good sign.

3. Litigation Philosophy

Some attorneys who work for insurance companies are settlement-oriented. Directed by the insurance company, they may recommend paying defensible claims simply as a matter of expediency. This approach may make sense when dealing with car-accident whiplash cases or slip-and-falls at the local grocery store. However, this method of operating makes no sense when a physician's professional reputation, license, credentialing and standing are at stake.

4. Freedom from Conflict

Some attorneys focus on medical malpractice on the plaintiff side, which is not necessarily bad or an automatic disqualifier, when considering a defense attorney. The fact that a lawyer has pursued plaintiff cases against physicians might mean that he or she is well-versed in how to mount an effective defense. Additionally, some medical malpractice defense attorneys concentrate on defending hospitals. Such attorneys might view facts through the lens of the hospital. The fact that the attorney being considered defends hospitals need not be an automatic disqualifier, but may not necessarily be a plus. Still, all things considered, if the doctor can find an attorney whose medical malpractice experience is predominantly or exclusively on the side of physicians, this may be the best recipe for a successful defense attorney selection.

5. Service-Orientation

Defendant doctors want and deserve a defense attorney who will view the physician ' not the insurer ' as the client. This may be difficult, particularly if the lawyers receive most of their assignments from insurers, not directly from doctors. What is service-orientation in a legal context? Vital habits include:

• How quickly does the attorney return phone calls?
• How promptly does the attorney answer e-mail?
• When phoning the office, are callers put on hold or quickly passed on?
• Does the physician feel that he or she is treated like a number or an individual?
• How often does the attorney provide updates on the case's progress?
• Are communications substantive and meaningful?
• Does the attorney make clients feel like he or she understands the key issues in the case and is fighting on their behalf?

6. Tenacity in Protecting the Doctor's Interests

Who does the attorney view as his or her client ' the physician or the insurance company? Typically, even if a lawyer is appointed by an insurance company, he or she should view the doctor as his or her client. While that may be fine as a general approach, in reality that notion can degrade if the lawyer relies on the insurer for a steady stream of cases. The attorney can start viewing the insurance company as the client or as a co-client, along with the defendant physician. Find out up-front.

7. Chemistry

A physician sued for medical malpractice will suffer stress. The process can be an emotional roller-coaster. Reading and hearing other physicians criticize one's judgment and/or technique is stomach-churning, and sitting for a deposition while being grilled for hours is stressful. The ordeal of trial can crack the poise of the most collected professional. Since the journey will be bumpy, it is best to share the ride with someone who wears well and with whom the medical professional is simpatico.

Next month, we will discuss some key questions that defendant medical care providers should be asking of candidates before choosing a defense attorney.

Kevin M. Quinley, CPCU, ARM, a member of this newsletter's Board of Editors, is the Principal of Quinley Risk Associates LLC, a risk management consulting firm. Mr. Quinley's book, Bulletproofing Your Medical Practice, is available from SEAK, Inc. He can be reached at [email protected] or at 804-796-1939.

NFL Commissioner Roger Goodell confidently strides to the podium, opens an envelope and intones, “With the number one pick in the 2014 NFL draft, the Houston Texans select ' ” Millions of eyes watched the latest NFL draft to see players picked by different teams and to critique those choices. Truth is, millions of dollars and reputations are at stake in making sound selection decisions.

In this respect, the NFL draft has much in common with selecting defense counsel in medical malpractice cases. Like any NFL franchise, the physician and medical malpractice insurer want to make sure that they make sound “first-round draft picks.” These picks can be successful or they can be a bust. Making bone-headed selections can cost millions of dollars in professional reputations if an attorney ends up mishandling a medical malpractice case.

Successful defense of a medical malpractice case is a team effort. While the defendant physician is the focal point, a key team member is the defense attorney who will defend the physician and the standard of care exhibited in the case. Thus, a key step in surviving and winning a medical malpractice lawsuit is wisely choosing the defense attorney who may ultimately enter a courtroom on the physician's behalf to defend what the practitioner did or did not do.

The Medical Practitioner's Role

Since the stakes are high if poor decisions are made, one aspect of managing medical malpractice risk involves selecting quality counsel for legal defense. Selecting outside counsel is not a task for defendant physicians to abandon to the insurance company. The physician has a legitimate role in picking “legal eagles.” Poor choices in selecting counsel can lead to botched results, whopping verdicts, huge settlements, eye-popping legal fees or a tainted reputation.

By contrast, smart choices in counsel selection will produce better case outcomes, manageable costs and better service. Smart choices are more likely when practitioners have the right tools and questions for conducting the search.

When might defendant physicians involve themselves in selecting defense attorneys? At least four scenarios could arise:

1. The doctor has been defended by another attorney in the past, by a prior insurer, and feels comfortable with that lawyer;
2. A conflict of interest exists between the doctor and the insurance company, which has “reserved coverage rights” and states that some parts of the claim may be excluded (Insurers may “reserve rights” in response to excluded claims ' such as battery ' or if some treatments giving rise to the claim occurred before the policy start (inception) date);
3. The potential ' or probable ' jury verdict/award exceeds the doctor's insurance limits; or
4. The physician lacks confidence in the defense attorney chosen by the medical malpractice carrier and insists on different counsel.

What to Consider

What criteria should doctors ponder when vetting defense attorneys? Here are seven vital areas to assess:

1. Subject-Matter Expertise

Most crucial is that the attorney have subject matter expertise in defending medical malpractice cases. Even better is if the attorney has expertise in the doctor/defendant's area of medical specialty, whether it be radiology, nephrology or bariatric surgery. Some defense attorneys specialize in specific areas of medicine, ranging from Botox injections to laparoscopic surgery to chiropractics. Ask the attorney/candidate to offer an overview of subject-matter expertise in defending medical malpractice cases, and inquire whether that expertise includes any area of medical concentration.

2. Peer Recommendations

Network with fellow practitioners to see who they recommend as an effective defense attorney. Cull these from exchanges at medical conferences, seminars and from informal chats with colleagues. If the same attorney names keep surfacing repeatedly, that is a good sign.

3. Litigation Philosophy

Some attorneys who work for insurance companies are settlement-oriented. Directed by the insurance company, they may recommend paying defensible claims simply as a matter of expediency. This approach may make sense when dealing with car-accident whiplash cases or slip-and-falls at the local grocery store. However, this method of operating makes no sense when a physician's professional reputation, license, credentialing and standing are at stake.

4. Freedom from Conflict

Some attorneys focus on medical malpractice on the plaintiff side, which is not necessarily bad or an automatic disqualifier, when considering a defense attorney. The fact that a lawyer has pursued plaintiff cases against physicians might mean that he or she is well-versed in how to mount an effective defense. Additionally, some medical malpractice defense attorneys concentrate on defending hospitals. Such attorneys might view facts through the lens of the hospital. The fact that the attorney being considered defends hospitals need not be an automatic disqualifier, but may not necessarily be a plus. Still, all things considered, if the doctor can find an attorney whose medical malpractice experience is predominantly or exclusively on the side of physicians, this may be the best recipe for a successful defense attorney selection.

5. Service-Orientation

Defendant doctors want and deserve a defense attorney who will view the physician ' not the insurer ' as the client. This may be difficult, particularly if the lawyers receive most of their assignments from insurers, not directly from doctors. What is service-orientation in a legal context? Vital habits include:

• How quickly does the attorney return phone calls?
• How promptly does the attorney answer e-mail?
• When phoning the office, are callers put on hold or quickly passed on?
• Does the physician feel that he or she is treated like a number or an individual?
• How often does the attorney provide updates on the case's progress?
• Are communications substantive and meaningful?
• Does the attorney make clients feel like he or she understands the key issues in the case and is fighting on their behalf?

6. Tenacity in Protecting the Doctor's Interests

Who does the attorney view as his or her client ' the physician or the insurance company? Typically, even if a lawyer is appointed by an insurance company, he or she should view the doctor as his or her client. While that may be fine as a general approach, in reality that notion can degrade if the lawyer relies on the insurer for a steady stream of cases. The attorney can start viewing the insurance company as the client or as a co-client, along with the defendant physician. Find out up-front.

7. Chemistry

A physician sued for medical malpractice will suffer stress. The process can be an emotional roller-coaster. Reading and hearing other physicians criticize one's judgment and/or technique is stomach-churning, and sitting for a deposition while being grilled for hours is stressful. The ordeal of trial can crack the poise of the most collected professional. Since the journey will be bumpy, it is best to share the ride with someone who wears well and with whom the medical professional is simpatico.

Next month, we will discuss some key questions that defendant medical care providers should be asking of candidates before choosing a defense attorney.

Kevin M. Quinley, CPCU, ARM, a member of this newsletter's Board of Editors, is the Principal of Quinley Risk Associates LLC, a risk management consulting firm. Mr. Quinley's book, Bulletproofing Your Medical Practice, is available from SEAK, Inc. He can be reached at [email protected] or at 804-796-1939.