Ray Hrdlicka - Presentador - Attorneys.Media
One of the interesting things in preparation for this interview, one of the things that I’ve noticed, it seems like the doctors have a larger role in the litigation for a medical malpractice suit versus a normal… versus another type of personal injury claim where the insurance company may take the lead in it and in terms of a car accident, the person who caused the accident doesn’t have as much of a say as the physician. Is that true?
Mark Kaire – Medical Malpractice Attorney – Miami-Dade County, FL
You are spot on, and the reason for that is that most medical malpractice policies or professional liability policies, as they’re called, are sold to doctors with the caveat that the doctors have a final say on whether or not a case can be settled or not. And that’s known as a consent policy.
Then all professional liability policies are sold to medical professionals with that pitch saying “hey look we’re not going to settle a case that you don’t want us to settle. Ultimately if you do not give us consent to settle this case we won’t settle it.”
What the insurance companies don’t explain to the doctors are the pitfalls of having a consent policy. Because the only thing you’ve really done with that consent policy is removed the insurance companies from ever acting in bad faith. And bad faith is a separate area of law that I know we’re not talking about today.
But bad faith is ultimately what gets insurance companies or the threat of mala fe ultimately is what gets insurance companies to do the right thing.
So, for example, if a case has a value, we’ll just call it clear, it’s a clear liability case and let’s just say the value of the case is $10 million. It’s catastrophic injuries and the doctor only has a $250,000 policy. Doctor may in his heart of hearts believe I did nothing wrong. He’s stubborn. He’s egotistical. He’s telling the insurance company, do not settle that case under any terms. Do not settle that case. “I don’t want it settled.” Once the doctor puts that in writing to the insurance company, the insurance company can sit back and say, you know, we agree with you. Case is worth every bit of $10 million, but the doctor won’t give us consent.
That case can go to trial. We can get a verdict of $10 million. And the one that’s going to be on the hook for that difference between the $250,000 policy and the $9.75 million excess judgment that’s now out there is the doctor.
But nobody ever explained that to him. He thought he was doing great by telling an insurance company not to settle. And at the end of the day, he’s looking at the possibility of a huge excess judgment that can wipe him out.
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