Should Med/Mal Claim Be Settled or Defended?

Things are rarely as they appear early in litigation

Upon learning he was being sued, one emergency physician (EP) was determined to defend the claim vigorously, until he learned that one of the experts on the plaintiff’s side happened to be one of his professors from medical school. The expert stated in a deposition that what the EP did was contrary to everything he was taught in medical school.

"You might have an EP who, right out of the gate, says, I did nothing wrong, and hell will freeze over before I will ever consent to settle,’" says David P. Sousa, JD, COO, and general counsel at Medical Mutual Insurance Co. of North Carolina in Raleigh.

The facts of the case may convince that EP that settlement is the best option, just as EPs anticipating a quick settlement sometimes decide they do want to go to court after additional facts come to light. "They may be thinking early on, I’ve got to settle because I screwed up,’" says Sousa. "But when you flush out all of the evidence, including all of the clinical information from other subsequent treating doctors — often, when they see all that, it can change their mind."

One EP learned, for example, that a delay in getting a patient to the cardiac catheterization lab wouldn’t have changed the outcome due to the patient’s previous cardiac history.

Since things are rarely as they appear initially when a malpractice suit involving ED care is filed, good decisions about whether to settle or defend the case can often be made only after the litigation process plays out, advises Sousa.

"Until you get the prior clinical history, which the ED rarely has, and figure out exactly what happened after the patient’s ED visit, it would be like trying to complete a jigsaw puzzle that was missing pieces," he says.

Not Always EP’s Choice

Most malpractice insurance contracts covering EPs have a "consent to settle" provision, meaning that the insurance company cannot settle the case without the EP’s permission to do so.

"There are situations where the EP really wants to defend the case but the insurance company feels that a defense before a jury is highly unlikely, and the jury verdict range [is] extremely high," says Sousa. Many insurance carriers have a provision that allows them to effectively "overrule" the "consent to settle" provision if the EP has no material facts on his or her side that would allow the case to be successfully defended.

"It is rare that an insurance company would ever invoke that trump card," says Sousa. "There’s usually going to be some merit to defending a case, even though it might be an uphill battle." If the insurance company believes the case is defensible, they don’t need the EP’s permission to proceed with that defense.

Maintaining control over the decision to settle is "highly desirable for a physician, especially in light of the fact that settlement results in mandatory reporting to the National Practitioner Data Bank," says David S. Waxman, JD, an attorney with Arnstein & Lehr in Chicago, IL.

"The decision to settle is obviously a critical one, which can have, on occasion, significant implications for an ER physician," says Waxman.

EPs often want to defend themselves to avoid the negative impacts of a settlement or a jury verdict on their reputation, on their ability to obtain and hold privileges at a hospital, and to be an approved provider by insurance companies, says Sousa.

"Authority for making the decision to settle claims is commonly addressed in employment contracts," notes Waxman. EPs considering the benefits of a particular employment arrangement must understand that certain provisions could disenfranchise them in the midst of malpractice litigation, he warns.

"Simply put, the risk-management interests of a corporate employer are not always commensurate with the career needs of an ER physician," he says.

Factors "Make or Break" Case

If the EP feels strongly that a malpractice claim should be defended, and at least one expert witness will support the care they gave, says Sousa, then Medical Mutual will do everything in its power to defend that EP.

"But you hate going in with less than a full deck," says Sousa. "Smart people who participate in litigation on a regular basis know that good facts make for the best outcomes. If you do not have good facts, the chances of prevailing go down astonishingly quickly." Here are the three factors that Sousa says "will make or break" a malpractice claim against an EP:

• Does the medical record support the EP’s decision process in doing what he or she did when the patient presented?

• Is there expert witness support?

"This is clearly important as to whether you are going to be able to defend the EP in court," says Sousa.

• Will the EP be a good witness testifying on his or her own behalf?

"This is the top of the list in every single case," says Sousa. "If the EP is believable and likable, then the EP is going to win the vast majority of the time."

Even if the EP uses poor judgment, or his or her clinical skills are somewhat lacking, the EP is likely to prevail if he or she is a good witness, and there is at least one expert and documentation to support the care provided, says Sousa.

"In the absence of any one of those things, your chances of being able to defend the ER doctor go down significantly," says Sousa.

Sources

For more information, contact:

• David P. Sousa, JD, COO/General Counsel, Medical Mutual Insurance Co. of North Carolina, Raleigh, NC. Phone: (919) 878-7609. E-mail: david.sousa@mmicnc.com.
• David S. Waxman, JD, Arnstein & Lehr, Chicago, IL. Phone: (312) 876-7867. Fax: (312) 876-0288. E-mail: dswaxman@arnstein.com.