Defense Attorney Brian Whitelaw on Working with the Claims Representative

In my experience, the insurance claims representative will usually do anything in his or her power to work toward a successful outcome on your behalf. Many insurance companies would rather spend a great deal of money defending a defensible case even if it can be settled for far less. Why? Because that practice discourages the filing of frivolous malpractice suits. The carrier may lose money on the individual case, but more than make up for it in the long run.

Your insurance carrier can be a great resource for helping you navigate your way through a malpractice suit. Early in litigation, your insurance company may send you a package of written information that will contain advice that will be helpful throughout the pendency of the lawsuit. All too often, physicians glance at that material and then put it away for the duration. You should pick it up and review it from time-to-time. You may find it contains a wealth of useful, practical information to help you achieve the best outcome.

In addition to its duty to defend and indemnify you, most insurance companies can help you in other ways. For instance, if you find yourself overwhelmed by stress associated with the lawsuit, tell your lawyer. Ask if the insurance carrier can help. They may have many resources available to assist you in dealing with that stress. The times of greatest stress are usually when one is preparing for deposition and when one is getting ready for trial. It is a mistake for a physician not to convey this stress to the lawyer. An experienced lawyer will understand and know exactly what to do.

The squeaky wheel gets the oil. In some ways, that pertains in your relationship with your attorney and your insurance claims person. Read the letters they send you. Respond to that correspondence. Ask if you might help with research. Talk to your attorney with enough frequency so that you remain on his or her mind. Do the same with your claim representative. If you are actively involved in your defense, the chance of having meaningful input and achieving a successful outcome is significantly increased. The better your relationship with your lawyer and claims person, the better the outcome is likely to be.

It is common for the carrier to authorize more than one expert to defend you on standard of care, along with additional experts to address proximate cause and damages. As a physician expert typically charges between $200 and $1,000 per hour, retaining several experts is an expensive proposition. Most carriers willingly accept this as a necessary cost of a strong defense. You should tell your lawyer you would like to be involved in the selection of experts. Note that your attorney will be most interested in a physician expert who can persuade a jury. This may not be the physician from academia who has a great reputation and looks best on paper. Early in my career, I was told about a particular neurosurgery expert who made a spectacular expert witness, but was not generally considered to be the best with a scalpel. The skill sets are very different.

The time elapsing between your receipt of the lawsuit and trial ranges between one and five years, depending upon the jurisdiction. You will not have daily contact with either your attorney or your claims person. There may be rather long periods of time where it seems that nothing is happening. Then there will be a flurry of activity. By far the most important event prior to trial will be your deposition. You must work with your attorney and carrier to be sure you are properly prepared. Depending upon the circumstances, your attorney may want to have multiple deposition preparation meetings, and may even suggest conducting a mock deposition. In a mock deposition, your attorney, or another lawyer from his or her office, will play the role of the plaintiff’s lawyer and ask you all the hard questions. Your answers will be critiqued and you will become well-prepared in that fashion. I will be much harder on my clients in those preparation meetings than the plaintiff’s attorney will be. I like to prepare my physicians for bear and am happiest when they end up facing a hamster. Make sure your attorney schedules sufficient time to adequately prepare you for deposition. If you do not feel prepared, you likely are not prepared.

The way you handle deposition questions can determine how the plaintiff’s lawyer will be able to portray you to the jury. Any mistake you made in deposition sticks with you through trial. In most jurisdictions, any portion of your deposition can be read to the jury. If taken by video, your deposition can be played to the jury. If you look sloppy or arrogant, the jury can see that via cherry-picked video segments. If you change your testimony between deposition and trial, plaintiff’s lawyer will ask you, in front of the jury, whether you were lying at the time you gave your deposition, or now, in front of the jury. Careful preparation is critical.

In conclusion, if you keep the above recommendations in mind, you should be able to successfully navigate any issues arising out of your relationship with your lawyer and insurance carrier. Whole books have been written about the potential pitfalls in the tripartite relationship. Good communication with both your lawyer and your claims person will help identify conflicts when they arise and provide a method of dealing with them if and when that happens. Where appropriate, retention of a personal attorney to keep an eye on the case will minimize the possibility that a conflict will develop, or will resolve in a way that is not to your benefit.

(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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