Defense Attorney Brian Whitelaw on The Relationship Between Physician, Defense Counsel, and Insurance Carrier

Despite the likelihood of being sued, most physicians are inadequately prepared to understand the dynamics affecting the relationship between physician, defense attorney and insurance company.

Shortly after your lawsuit is served, a meeting or telephone conference will typically be scheduled with your insurance claim representative. The malpractice carrier will also send a letter acknowledging receipt of the claim. That letter will typically include a reference to your policy limits, the fact that you have a right to retain personal counsel to cover your risk in excess of limits, and other preliminary matters. As a general rule, your insurance company has two primary obligations to you: (1) a duty to defend you, and (2) a duty to indemnify you up to your policy limits.

In order to defend you, your insurance company will retain counsel. It may or may not ask for your input with respect to the selection of your lawyer. Most insurance companies have a panel of lawyers who are approved to represent their insured physicians. You should ask your carrier which attorneys are on the panel and ask to be assigned highly-experienced counsel, with a successful record of trying cases to a physician victory.

On this topic, the world of medical malpractice defense attorneys can be split roughly into two groups: 1) attorneys who primarily represent physicians; and (2) attorneys who primarily represent hospitals. I recommend you advocate for an attorney who primarily represents doctors. In almost every jurisdiction, there are successful attorneys who regularly represent physicians, take many cases to trial and have a successful record. By the same token, many attorneys with decades of “experience” have tried few if any cases. In general, hospitals tend to settle more cases than companies insuring physicians. If your attorney does not have a reputation as a successful trial lawyer, would you be comfortable having him try your case? Would you be happy with his recommendation that you settle the case, even if you think you did nothing wrong? Would you expect him to be able to negotiate the best settlement, where appropriate, when the opposition knows he or she is unlikely to try the case? When the claims person tells you whom they intend to assign, try to find out as much as you can about the lawyer before a final decision is made.

(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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