Surviving the Medical Malpractice Claim

Timing

Timing is key. A physician's bargaining leverage is greatest before buying a policy, when he or she is considering coverage. Ask each candidate carrier, “Can I have input on the counsel selection process?” Prepare a compelling case on how counsel of the physician's choice is cost-effective and knowledgeable.

Medical care practitioners finding themselves the target of a malpractice claim should do their homework. When possible, have specific counsel in mind. When a search for the best legal representative is necessary, however, pose certain questions to candidate counsel. The answers to these questions will guide the medical care provider in assessing which attorney is the right fit for his or her case.

Who Are the Attorney's Other Clients?

Seek references in the medical malpractice field and, if possible, get names, addresses and phone numbers of the potential defense attorney's previous clients. This facilitates making apples-to-apples comparisons. Follow through. Check references to gauge the satisfaction of other physicians and health care providers who have engaged this lawyer to handle their own malpractice case.

What Are the Attorney's Credentials in this Area Of the Law?

The day of the generalist is over. Press attorney candidates for specifics, asking, for example:

• Who have you represented in this specific area?
• Without breaching confidentiality, can you cite specific cases you have handled in this field?
• Have you or your firm written any articles on medical malpractice?
• What continuing education on medical/professional liability have you attended in the past two years?

Since lawyers often fall into “rainmaker” roles, pointed questions help determine whether the representations are genuine or simply marketing dross.

What Is the Attorney's Win/Loss Ratio for This Type of Case?

If medical malpractice is the lawyer's specialty, he or she should know the answer to these questions. Hemming and hawing is a bad sign. As management guru Tom Peters said, “That which gets measured gets done.” If attorneys or law firms do not keep score and do not formally track outcomes in cases like yours, how serious can they be about handling that type of assignment?

What Is the Attorney's Claim or Litigation Philosophy?

If the response to this question is a blank stare, that is a disquieting sign. Some attorneys will (and should) respond that, “Our philosophy is guided by our client's philosophy.” Good answer!

If doctors prefer to fight claims, a settlement-oriented law firm will not be a good match, so it is important that the doctor makes sure the lawyer is on the same wavelength as to settlement or defense philosophy. Invest time up-front in order to find out. Better to learn early on whether the defendant physician is incompatible with counsel than to get into medical malpractice litigation, only to discover that the insurer-selected counsel recommends paying off the claim just to be rid of the case. (While most malpractice policies confirm veto power over settlement to the insured physician, a settlement-oriented defense attorney can still “lean on” and arm-twist the physician into granting such consent to settle.)

Conclusion

The moral: Just because a physician has medical malpractice insurance, this does not render the practitioner powerless to pick counsel or to shape the selection process in ways that further the policyholder's interests.

In assessing the medical malpractice landscape, it is easy to get depressed and fatalistic. Neither reaction is the answer, nor is cynicism. Don't get mad or get even ' get empowered! Use these ideas as tools to help select and evaluate legal counsel that advance ' not frustrate ' the physician's legitimate goals to survive and win a medical malpractice case.

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

When a doctor or other health care provider learns that he or she is the subject of a medical malpractice suit, one of the first things the defendant will want to do is find the most top-flight legal representation possible. Without it, the outcome of the medical practitioner's case could suffer. But how can the physician know which defense attorney ' among the many out there ' is the right one for the case?

Last month, we discussed some practical considerations in making this vital decision. But there may be a roadblock placed between the physician and attorney candidates, in the form of the insurance company's counsel-selection process. Further, some doctors think, “I'm insured ' isn't counsel selection the insurance company's job?”

Well, yes and no. Even the insured doctor should get involved in the counsel selection process. But how?

Timing

Timing is key. A physician's bargaining leverage is greatest before buying a policy, when he or she is considering coverage. Ask each candidate carrier, “Can I have input on the counsel selection process?” Prepare a compelling case on how counsel of the physician's choice is cost-effective and knowledgeable.

Medical care practitioners finding themselves the target of a malpractice claim should do their homework. When possible, have specific counsel in mind. When a search for the best legal representative is necessary, however, pose certain questions to candidate counsel. The answers to these questions will guide the medical care provider in assessing which attorney is the right fit for his or her case.

Who Are the Attorney's Other Clients?

Seek references in the medical malpractice field and, if possible, get names, addresses and phone numbers of the potential defense attorney's previous clients. This facilitates making apples-to-apples comparisons. Follow through. Check references to gauge the satisfaction of other physicians and health care providers who have engaged this lawyer to handle their own malpractice case.

What Are the Attorney's Credentials in this Area Of the Law?

The day of the generalist is over. Press attorney candidates for specifics, asking, for example:

• Who have you represented in this specific area?
• Without breaching confidentiality, can you cite specific cases you have handled in this field?
• Have you or your firm written any articles on medical malpractice?
• What continuing education on medical/professional liability have you attended in the past two years?

Since lawyers often fall into “rainmaker” roles, pointed questions help determine whether the representations are genuine or simply marketing dross.

What Is the Attorney's Win/Loss Ratio for This Type of Case?

If medical malpractice is the lawyer's specialty, he or she should know the answer to these questions. Hemming and hawing is a bad sign. As management guru Tom Peters said, “That which gets measured gets done.” If attorneys or law firms do not keep score and do not formally track outcomes in cases like yours, how serious can they be about handling that type of assignment?

What Is the Attorney's Claim or Litigation Philosophy?

If the response to this question is a blank stare, that is a disquieting sign. Some attorneys will (and should) respond that, “Our philosophy is guided by our client's philosophy.” Good answer!

If doctors prefer to fight claims, a settlement-oriented law firm will not be a good match, so it is important that the doctor makes sure the lawyer is on the same wavelength as to settlement or defense philosophy. Invest time up-front in order to find out. Better to learn early on whether the defendant physician is incompatible with counsel than to get into medical malpractice litigation, only to discover that the insurer-selected counsel recommends paying off the claim just to be rid of the case. (While most malpractice policies confirm veto power over settlement to the insured physician, a settlement-oriented defense attorney can still “lean on” and arm-twist the physician into granting such consent to settle.)

Conclusion

The moral: Just because a physician has medical malpractice insurance, this does not render the practitioner powerless to pick counsel or to shape the selection process in ways that further the policyholder's interests.

In assessing the medical malpractice landscape, it is easy to get depressed and fatalistic. Neither reaction is the answer, nor is cynicism. Don't get mad or get even ' get empowered! Use these ideas as tools to help select and evaluate legal counsel that advance ' not frustrate ' the physician's legitimate goals to survive and win a medical malpractice case.

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