Malpractice Consult

By Lee J. Johnson, JD

When it's wise to hire your own attorney

Q: If I'm sued for malpractice, my insurance carrier will assign an attorney to represent me. Is his primary obligation to me or to the carrier? Would I ever need to hire my own lawyer?

A: Most of the time, the attorney assigned by the malpractice carrier will defend you adequately. The carrier's money is on the line, so it has no interest in hiring incompetents. Although the lawyer is paid by the insurer, his first allegiance should be to you.

Still, sometimes it's advisable to hire a personal attorney. Here are the main situations in which you should consider doing so:

You question the lawyer's competence. When you meet the attorney assigned to you, ask what experience he's had with cases like yours. What's been his success rate with them? What other physicians in your specialty has he represented? Which expert witnesses does he intend to use in your defense? Also ask him to describe his training. If you aren't satisfied with the answers, discuss your concerns with the carrier. If your objections are clear and legitimate, it will probably assign another attorney.

You also have the option of hiring your own lawyer to determine how well you'll be represented by the insurer's attorney. Your counsel can intervene to smooth things over and monitor what the assigned one is doing.

Co-defendants could point fingers at you. Consider hiring your own attorney if there are other defendants in the case. A joint defense with one attorney representing all of you can be solid strategy; a unified defense improves the chances of winning if defendants don't point fingers of blame at one another. But it's a good idea only when the interests of all defendants coincide.

If your interests conflict with those of a co-defendant or your insurer, it's wise to demand a separate attorney. Most carriers will cooperate. Your personal lawyer can help you determine when you should make this request, and he can monitor your defense to make sure your interests are protected.

The verdict could exceed your coverage.If there's a chance that a jury verdict could exceed your insurance coverage, you'll need a personal attorney from the start. In fact, the carrier will probably send you a letter stating that you could be personally liable for any amount over the policy limit and therefore should consult with your own attorney. His role is to ensure that the carrier protects you. He might demand that the carrier settle the case within your policy limits, or that it indemnify you if the verdict is in excess of coverage. The carrier may still decide to go to trial, but you'll be better protected against an excess verdict.

If the insurance carrier indicates it might refuse to cover you at all, get your own attorney—fast. In most states, insurers can't provide coverage for intentional acts, such as assault or sexual harassment. For instance, malpractice insurance wouldn't cover an FP who's sued for hitting or harshly restraining an out-of-control child in his office. But it's possible the carrier might decide to provide a defense lawyer.

Your insurer also isn't required to indemnify or defend you against other challenges, such as suits involving peer review, credentialing, licensing sanctions, state health department reviews, and patients' complaints to medical societies and hospitals. But if you face such charges, notify the carrier and request a defense. While the insurer won't pay any damages, it may provide a lawyer on the theory that the case could later form the basis of a malpractice suit. Even if the carrier provides counsel, you may want your own attorney.

Finally, if there's a gap in your coverage because you didn't pay your premium on time, for example, the insurer may decline to cover you. Or perhaps you didn't inform your insurer promptly that you'd been served with legal papers. Your own attorney can either defend you or, preferably, persuade the carrier to provide coverage in spite of the technical violations of its policy.

When you choose personal counsel, select someone with expertise and experience in the appropriate area of the law. If the charge is malpractice, a malpractice defense attorney is best. If you're facing administrative review, you need a health attorney with a track record in that area.

Remember that malpractice cases typically last three to five years, so hiring your own lawyer to help in your defense could be very costly. Ask his hourly rate and how much time he estimates he'll spend.

The author, who can be contacted at PO Box 37, Mount Kisco, NY 10549, or at lj@bestweb.net, is a health care attorney who specializes 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 magazine, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 201-722-2688 or send it via e-mail to memalp@medec.com.

 

Lee Johnson. Malpractice Consult. Medical Economics 2001;10:118.