Consider several points in settlement decisions

December 17, 2010

To settle or not to settle? Read the article to determine how to discern the best choice.

When deciding whether to settle a case in which you are accused of malpractice, consider these points:

Read the language in your policy carefully to see how it's written. If it's not clear, then ask your insurer.

Try to obtain a copy of any existing expert reviews. Typically, an insurer will obtain an in-house or impartial review as part of its initial effort to evaluate the case. Then it will obtain an outside review. The insurer will ask for an informal verbal opinion. If the verbal review is favorable, then the insurer may ask for a written review and may retain the expert for possible trial testimony.

If a review by an expert relevant to the case has not been conducted, ask for one. Any settlement recommendation should be based on such a review.

In general, your insurer has the same interest as yours: to settle the case as expeditiously and as inexpensively as possible. Your interests and those of your insurer may diverge on a few points, however. One such point is whether the verdict has the potential to exceed your policy limits. Another point is whether the case possibly could be settled at nuisance value-that is, less than the amount it would take to defend the case.

Your defense attorney is obligated to represent your interests. The legal code of ethics mandates that each client must be represented to the full extent of the attorney's ability. Remember, however, that your insurer selected and will pay your counsel, so don't dismiss the influence of loyalty to the insurer.

You may consider hiring a personal attorney to review the case with the insurer. If the personal attorney fears a runaway jury, you might want to insist that the carrier settle the case within your policy limits. Alternatively, if your personal attorney believes that the case against you is weak, then he or she can demand that the insurer provide you with a vigorous defense rather than settle out of convenience.

The author is a health law attorney in Mt. Kisco, New York, and a Medical Economics consultant. She acknowledges the assistance of Frank J. Weinstock, MD, and Paul L. Gordon, MD, with this column. Malpractice Consult deals with questions on common professional liability issues. Unfortunately, we cannot offer specific legal advice. If you have a general question or a topic you would like to see covered here, please send it to medec@advanstar.com