Defense Attorney Brian Whitelaw on Questions and Conflicts about Legal Representation

After your attorney is selected, some physicians consider whether or not to hire an attorney of their own. There are several reasons to consider doing so. If your exposure exceeds your policy limits, consider retaining personal counsel. Personal counsel will have as a primary goal the protection of your assets where there is excess exposure. That attorney will ask the carrier to have the assigned attorney provide a copy of all significant status reports. Personal counsel can assist in recommending expert witnesses, preparation for deposition and defense strategy. It is rare for a physician to hire personal counsel in my experience. In most circumstances it is not strictly necessary. Ask your assigned lawyer to help you decide whether and when personal counsel should be retained.

Are there circumstances where your carrier might not have your best interests at heart?   In most circumstances, the physicians’ interests and the interests of the carrier are aligned. The doctor and the insurance company both benefit where the payout is smallest. This is not always true, however. Your carrier’s main costs are legal defense costs and indemnity payments. If your carrier can settle a weak case for $20,000, it may opt to do so, rather than spend $100,000 or more to try to obtain a victory at trial. Note this cannot happen without your agreement if your insurance policy carries a consent clause. By that I mean, an insurance policy that requires your consent before the insurance company can settle. If you have such a policy, no settlement can happen without your permission.

Another area of potential concern is if your carrier insures several defendants in the same case. The carrier may want to assign a single attorney, to avoid duplication and reduce fees. Although there are some advantages, there are also potential disadvantages. The primary advantage would be that one lawyer would know all of the defense positions and could try to develop a unified defense. It generally does not make sense for one defendant to point the finger at another. That often increases the overall value of the case and reduces the likelihood that all the physician-defendants will win at trial.

But what if it is not possible to have a unified defense? If you believe the co-defendant physician made a critical mistake, and if that mistake was the cause of the damage to the patient, you should not be precluded from making that argument. If your attorney is also the attorney for the other physician, a conflict of interest exists. If your carrier appoints one attorney to represent multiple doctors, you need to carefully evaluate the case and decide if you believe everyone’s interests are aligned. If it at any time during the pendency of the case you feel they are not, contact your attorney and carrier immediately and request separate counsel. Explain why. If the insurance company will not agree, hire personal counsel to write a letter requesting it do so.

Another problem can arise where the same attorney represents you and a hospital, if both named in one suit. The hospital risk manager or in-house counsel often decides whether a case is settled or tried. If you are named on the hospital’s insurance policy, and/or if you are a hospital employee, you may also find you do not have a consent clause in your insurance coverage. In that circumstance, you are at risk for possible settlement of your case even if it is very defensible. The settlement would then be reported to the National Practitioner’s Data Bank, where it would remain forever. Anytime you apply for staff privileges, by law that facility is required to consult the NPDB. If you have a number of settlements on your record, you may find it difficult to obtain privileges elsewhere. Settlements and verdicts are also reported to the licensing authorities in most states. In a malpractice case, some hospitals may be more motivated by a financial analysis than would be a company insuring you personally. If the hospital can settle for far less than it would take to successfully try a case, it may choose to settle. If you do not have a consent clause in your insurance policy, you may not be able to prevent it. You can certainly advocate for the case to be tried, but in the end, if you do not have a consent clause, you cannot insist on it.

Another potential issue in the tripartite relationship may arise when you believe your attorney is more interested in satisfying the insurance company than in defending you. You may only be sued once or twice in your career, but a medical malpractice defense attorney will be defending multiple cases over many years for the same insurance companies. What happens if the attorney believes the case should be settled, the physician agrees, but the insurance company does not? Different states have different rules for situations like this. In some states, the lawyer’s ethical obligation runs only to the physician he represents. In other states, a lawyer’s ethical obligation runs to both the physician and the insurance company paying him or her. Even in states where the attorney’s ethical obligation is only to the doctor, as a practical matter, your attorney may not want to aggressively advocate for settlement if the insurance company has already decided to take the case to trial. Your lawyer may fear he or she will not be selected for the next case. It takes a strong attorney to take a position in opposition to the insurance company that hired him or her. Be sure your attorney has that strength of character and feels an ethical obligation to put your interests first.

(This post was written by Brian Whitelaw, a Grand Rapids, Michigan attorney who, since 1983, has focused on the defense of medical malpractice litigation).

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