MD personally liable for huge jury verdict?

This much-feared scenario among physicians is not highly likely

If a jury verdict is returned for $5 million against a physician whose policy limit is $1 million, simple math indicates the physician would then be personally liable for $4 million. This situation is highly unlikely, however, according to Leonard Berlin, MD, FACR, professor of radiology at Rush University and University of Illinois, both in Chicago, and author of Malpractice Issues in Radiology.

“Reputable plaintiff attorneys almost never go after the physician’s personal assets, though sometimes a very minor plaintiff attorney will do so,” he says. “I have heard of only one or two cases of this, and in those cases, the physicians had almost no insurance coverage.”

While $100,000 of medical malpractice coverage is likely insufficient, $1 million is probably adequate for most physicians, according to Berlin. If physician have additional millions in coverage, they could be setting themselves up as a “deep pocket” for plaintiff attorneys. Here, Berlin offers some factors that could protect physicians from being personally liable for a jury verdict that exceeds their policy limits:

• It’s rare for a physician to be the only defendant in the case.

Usually, the hospital, group, referring physician, or consultant also is named. “Probably 95% of malpractice cases have multiple defendants. So whatever the jury verdict is, it’s going to be split,” says Berlin.

• If the hospital is named in the suit, the plaintiff attorney is unlikely to go after an individual physician for the amount over the policy limits.

“Even if there is an enormous verdict of say, $15 million, which is highly unlikely, if the hospital, which has generally unlimited funds, is named, and a physician has $1 million of coverage, no one is going to go after him for more than $1 million,” Berlin says.

• A “high/low” agreement is often reached during the trial.

“The plaintiff’s attorney is worried that the jury may find the physician not guilty,” says Berlin. At the same time, the defense lawyer is worried the jury will come back with a multimillion dollar verdict against the physician.

In this scenario, the two sides often reach an agreement midtrial in which the plaintiff agrees to accept the physician’s maximum insurance coverage if the physician is found guilty, and the defendant agrees to pay a certain amount even if the jury’s verdict is not guilty.

“When the case is over, the news might report a $3 million verdict. Most people don’t realize that in most cases, those amounts are never paid in full,” he says. “This is not uncommon and is never publicized.”

• The plaintiff attorney might agree to accept the physician’s policy limits if the defense agrees not to appeal.

If the jury returns a $5 million verdict, and two named physicians each have $1 million of coverage, for example, the defense attorney most likely will make a deal with the plaintiff attorney. “They will make this offer: ‘If you accept the $2 million in insurance coverage as full payment, we’ll give you a check today. If you want to hold out for the $5 million, we will appeal this case,’” says Berlin.

It will take several years for the appellate court to rule, and the court might reverse the verdict altogether, or if the verdict is sustained, the defense can appeal to the state supreme court. This appeal will take another several years to resolve, says Berlin.

“In 99% of cases, in this scenario, the plaintiff attorney will take the $2 million and walk,” he says. “Only rarely will jury verdicts in excess of available insurance coverage be paid in full. That is the real world, and that is the way the system works.”

Source

Leonard Berlin, MD, FACR, Rush University, Chicago. Phone: (847) 933-6111. Fax: (847) 933-6113. Email: lberlin@live.com.