Taking your chance with a jury

March 20, 2000

I settled a malpractice case in 1996 for $275,000, and lost another case at trial the same year, where a jury awarded the patient $485,000. I'm currently a defendant in a third suit, where the doctor covering my office didn't respond to a weekend emergency call. The patient lost an eye from infection. The plaintiff wants me to settle; my attorney thinks I can win. Is there any kind of "three strikes in five years" rule that might trigger an investigation by my state medical board? If there's a stigma attached to settling or losing three cases within five years, I might as well take my chances at trial.

Q:I settled a malpractice case in 1996 for $275,000, and lost another case at trial the same year, where a jury awarded the patient $485,000. I'm currently a defendant in a third suit, where the doctor covering my office didn't respond to a weekend emergency call. The patient lost an eye from infection. The plaintiff wants me to settle; my attorney thinks I can win. Is there any kind of "three strikes in five years" rule that might trigger an investigation by my state medical board? If there's a stigma attached to settling or losing three cases within five years, I might as well take my chances at trial.

A: Your track record could certainly raise the eyebrows of regulators, although it's not far off the norm for high-risk specialists in litigious areas. State boards review malpractice settlements and awards, and three large payouts in five years probably won't go unnoticed.

The National Practitioner Data Bank, which will have reports of all malpractice-related payments made on your behalf, must be queried by hospitals and managed care plans about credentialing, and by states about licensure applications. So your record could potentially hurt you in securing hospital privileges or membership on managed care panels.

Should you gamble and go to trial? Look carefully at your actions in the case. Are there any grounds for the allegation that you departed from the standard of care? You feel the liability rests with the doctor covering for you. But did you adequately inform him about your high-risk patients? Did he know that this patient's eye was in danger of being compromised? Did you know? Should you have known? Was there a prophylactic antibiotic you could have prescribed that would have saved the eye? Were your records available to the treating physician? Do you have any reason to think he wasn't qualified?

If you selected a doctor in a different specialty from yours, or if you have any reason to believe that he wasn't adequately trained to handle your patients, you could have liability for selecting him to cover your practice. If you failed to alert him to the seriousness of the patient's condition, he could point some of his liability back at you.

After evaluating the medical facts, consult with your attorney and insurer about the many external factors, including the judge, jury, and media climate in your locale. Certainly, a plaintiff who has lost an eye would strike a sympathetic chord with jurors.

If you decide to have your day in court, think about how you'll respond to the questions and issues raised above. The plaintiff's attorney will be sure to ask about them. You might consider hiring your own attorney to review the case with the insurer. If he fears a runaway jury, you might want to insist that the carrier settle the case within your policy limits. Alternatively, if he believes the case against you is weak, he can demand that the insurer provide you with a vigorous defense rather than settle out of convenience.