Insisting on your day in court? Think twice!

Settling might be a better option, according to attorney

Physicians might think that they have obtained a victory by being given the right to participate in the decision as to whether a case is settled or goes to a jury, or in some cases mandate that a case not be settled because they want their day in court. However, there are serious implications that most doctors are unaware of, according to David W. Spicer, JD, a healthcare attorney in Palm Beach Gardens, FL.

Medical malpractice lawsuits are time-consuming, expensive, and jurors overwhelmingly rule in favor of the doctors on cases in which liability is not clear, says Spicer. "Jurors rule in favor of doctors on 80% of cases, but the worst cases almost never go to trial," he adds.

Insurance companies have the experience to evaluate cases and know which ones should be tried and which ones should be settled, says Spicer. However, a "defensible" case might mean one thing to the insurance company and something entirely different to the physician involved, he adds.

"Doctors accused of malpractice generally are in the worst position to determine whether or not the case should be settled or go to trial," says Spicer. "The unpredictability of a jury is certainly a factor."

When a doctor, who is intimately involved in patient care and angry over being accused of negligence becomes the decision maker in the lawsuit, "it is a recipe for disaster, both from a licensure standpoint and the potential financial ruin of the physician," says Spicer.

If a physician's insurance policy has low limits and the case has the potential for catastrophic damages, the doctor must evaluate whether to risk his or her entire financial future on the whims of a jury, he adds. "If the doctor tells the insurance company to settle, gives the insurance company full authority as to how to conduct the case, and the insurance company chooses to go to trial, they do so, arguably, with their own money at risk and not the doctor's," says Spicer.

Florida insurance law has been relatively straightforward that if a doctor wants to have the case settled and the insurance company takes it to trial, the insurance company is exposing itself to the excess verdict, not the doctor, he adds. This situation is not the case if a doctor wants to have the case tried and the insurance company simply follows his or her directions, however.

If a doctor demands to take a case to trial, the insurance company can go to trial, and all it has at risk is its policy limits, because any verdict greater than the policy limits is going to fall upon the physician "who, sometimes foolishly, wanted to have his or her day in court," says Spicer.