Malpractice Consult

October 8, 2004

When to hire your own lawyer

A Most of the time, the attorney assigned by the malpractice carrier will defend you adequately. After all, it's the carrier's money that's on the line, so the company is not likely to hire incompetent lawyers. But while that lawyer's first allegiance should be to you, since you're the client, remember that it's the carrier who's paying him, not you.

So sometimes it's advisable to hire your own attorney, as well. Here are some situations when a personal attorney might be worth considering:

If your objections are legitimate, your carrier will probably assign another attorney. If it doesn't, consider hiring your own lawyer to monitor the insurer's attorney.

When co-defendants might blame you. If there are co-defendants, a unified joint defense with one attorney might be a solid strategy-but only if the interests of all defendants coincide. If they don't, request a separate attorney. In most cases, the carrier will cooperate.

When the verdict could exceed your coverage. If there's a chance of this happening, get a personal attorney from the start. In such cases, the carrier will probably send you a letter stating that you could be personally liable for any judgment over your policy limit, and recommending that you consult your own attorney.

A personal attorney might demand that the carrier settle the case within your policy limits, or that it indemnify you if the verdict exceeds that limit. The carrier may still decide to go to trial if it's convinced the case is strong, but at least your personal assets will be protected.

When your policy won't cover you. If the case against you involves intentional acts that go beyond the practice of medicine, you should get your own attorney-fast-since your malpractice carrier may refuse to cover you at all. Such allegations could include assault or sexual harassment of a patient. Or they could lead to peer review, licensing board sanctions, or patient complaints to hospitals or medical societies.

Your insurer isn't required to indemnify you against such charges. But it may be willing to at least provide you with a defense attorney, since the case could later form the basis for a malpractice suit. Even then, it might be worth hiring your own attorney, as well.

What should you look for when choosing a personal attorney in such cases? Find a healthcare attorney with the appropriate experience-whether it's in malpractice, peer review, or medical licensing. But remember that some cases can drag on for years, and attorney fees can become costly. Whomever you choose, ask his hourly rate, and how much time he estimates your case will require.

The author, who can be contacted at 4 Carlton Drive, Mount Kisco, NY 10549, lj@bestweb.net, is a healthcare attorney specializing in risk management issues. This department answers common professional-liability questions. It isn’t intended to provide specific legal advice.

If you have a question, please submit it to Malpractice Consult, Medical Economics, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 973-847-5390 or e-mail it to memalp@advanstar.com
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