If an emergency physician (EP) defendant isn’t happy with the attorney assigned by the insurance carrier, he or she can generally request another attorney, but is this a good idea?
“While malpractice carriers often have an attorney in mind for the case, they often utilize multiple defense firms in larger cities,” says Nathaniel Schlicher, MD, JD, FACEP, associate director at TeamHealth Patient Safety Organization and attorney of counsel in the Seattle office of Johnson, Graffe, Keay, Moniz & Wick. The carrier will likely be flexible as to who will handle the EP’s case.
“That said, when the carrier recommends a group of attorneys who have experience and a proven track record in medical malpractice defense, heed that advice carefully,” Schlicher says.
The nuances of trial and of medical malpractice defense vary by state, he explains. The EP needs an attorney with the expertise to defend him or her to the fullest extent of the law. Factors that Schlicher would look for in an attorney include experience, past trial work, and the ability to handle the case in terms of time and resources. Also, the attorney should be a good match with the EP in terms of style and approach. “In the end, this is someone whom, despite your desire not to, you will spend a large chunk of the next one or two years working with,” Schlicher says. “You need to get along and have an ability to communicate effectively.”
Nan Gallagher, JD, Esq., a trial attorney with the law firm of Kern Augustine Conroy & Schoppmann in Bridgewater, NJ, says EPs should first conduct a telephone or face-to-face interview with their assigned malpractice counsel. “Make note of the attorney’s ability to effectively articulate key issues in both law and medicine. After all, he or she is going to have to present your matter to a jury full of regular Joes and Janes,” Gallagher says.
EPs should allow some time to pass and some developments to occur during the representation before deciding that completely new counsel is warranted. “Let the process play out,” Gallagher advises. “Most liability insurance carriers are assiduous about only having seasoned and accomplished attorneys defend their insureds at the time of trial.” Here are some factors to consider:
- What is the attorney’s level of expertise?
“Even within the field of malpractice law, some attorneys are more experienced in emergency medicine cases versus other specialties,” says Jon Mark Hirshon, MD, PhD, MPH, FACEP, associate professor in the Department of Emergency Medicine and an attending EP at the University of Maryland Medical Center in Baltimore..
- Is the attorney experienced in the particular jurisdiction?
“I live in an area where the malpractice environment is not the best. Attorneys may recommend that cases be settled here, that they would not settle someplace else,” Hirshon says. The particular jurisdiction can become important when decisions need to be made whether to settle or defend a malpractice claim. “I, as a provider, would be very upset if I had to settle something that I thought was defensible. But maybe a lawyer can convince me that it’s not defensible in the jurisdiction,” Hirshon says.
- What is the attorney’s overall approach?
Stephen A. Barnes, MD, JD, FACLM, a trial attorney at McGehee Chang Barnes & Landgraf in Houston, recommends that the EP interview the attorneys on his malpractice carrier’s list, and request the one that promotes honesty, fairness, and timeliness in getting facts to the plaintiff. “Delay does nothing but harm the emergency physician,” he says. “Indeed, studies by insurance carriers themselves have shown that quick resolution of a bad outcome costs far less than dragging things out.”
Barnes has found that common legal tactics that hide or delay the truth infuriate plaintiffs — often to the EP’s detriment. “I am astonished by the level of deception, obfuscation, and delay that defendant doctors allow from their attorneys,” he says. “Such maneuvers often further increase emotions of an injured plaintiff.”
An infuriated plaintiff is likely to place blame on the EP instead of the defense attorney. “Understandably, a patient who sees that a lawsuit is being dragged out or that the defendant doctor is being coached by an attorney to hide the truth, leads to a decreased desire to resolve the dispute short of an actual trial,” Barnes says.
This goes beyond the care provided by the defendant EP. “It includes recanting negative remarks the defendant made to the patient about another physician or hospital staff — or even worse, proactively covering up for others by stating that the standard of care was followed by others when the defendant knows in his or her heart that this is not true,” Barnes says.
In Barnes’ experience, defense attorneys who band together to present a common front often do so to the detriment of a single defendant. “If you stay on board that ship, you may well go down with it,” he says, noting the plaintiff may refuse to accept a settlement offer. “A jury verdict against a physician causes far greater damage — including potential exposure to medical board actions — than a settlement,” Barnes says. “A cooperative and honest defendant may even obtain a voluntary dismissal by the patient.”
- What is the potential for conflict of interest if the EP wishes to settle the claim?
A defense attorney appointed by an insurance carrier must protect both the carrier’s money and the physician’s professional exposure. “But what if an insurance carrier wants to gamble on going to trial, risking the physician’s professional reputation, ability to obtain privileges in the future, or medical board actions, should a jury find against the physician?” Barnes asks.
If the EP believes that a defense attorney from the insurance carrier won’t follow the EP’s instructions regarding managing the EP’s own case, the EP may want to hire his or her own attorney. EPs may be reluctant to do this because of the expense involved. “But the reality is, the insurer-appointed defense attorney is paid by the insurer as the insurer’s repeat player,” Barnes says, adding that while the EP does not have to hire a personal attorney upfront, the EP can do so if and when the EP feels that their interests are becoming secondary to the insurer’s.
If the EP wants to settle a case and move on, yet the insurance carrier wants to go to trial against the physician’s wishes, Barnes adds, “the insurance carrier will prevail — unless the physician is aggressively proactive in his case and protects his own interests.”
- Stephen A. Barnes, MD, JD, FACLM, McGehee Chang Barnes Landgraf, Houston, TX. Phone: (713) 864-4000. E-mail: firstname.lastname@example.org.
- Nan Gallagher, JD, Esq., Kern Augustine Conroy & Schoppmann, Bridgewater, NJ. Phone: (800) 445-0954. Fax: (800) 941-8287. E-mail: email@example.com.
- Jon Mark Hirshon, MD, PhD, MPH, FACEP, Associate Professor, Department of Emergency Medicine, University of Maryland Medical Center, Baltimore. Phone: (410) 328-7474. Fax: (410) 974-0819. E-mail: firstname.lastname@example.org.
- Nathaniel Schlicher, MD, JD, FACEP, Associate Director, TeamHealth Patient Safety Organization. E-mail: email@example.com.