Is your lawyer on your side?

Malpractice Consult

When a medical liability case does go to trial, the insurance company's reluctance to spend money may hamper its attorney's efforts to mount a strong defense. For example, plaintiffs' attorneys are increasingly using high-tech resources, like computer-aided demonstrations, 3D graphic reconstructions, and PowerPoint presentations to present their cases.

Insurance-company defense attorneys, on the other hand, are lagging far behind. Many still rely chiefly on blow-up poster boards. One reason is that carriers require their attorneys to obtain permission before spending money. Some require permission for even the most basic undertakings, like hiring an expert, pursuing legal research, filing discovery motions, or conducting surveillance on a plaintiff thought to be exaggerating injuries.

If you find yourself doubting your appointed counsel, you have two choices: Accept the insurance company's limitations, or hire your own lawyer to analyze your defense and offer a second opinion. If, after reviewing the case, your personal counsel indicates that you have a viable case and the insurance company is shirking its fiduciary duty to provide a zealous and full defense, report that to the company. If the company still refuses to work hard on your behalf, consider having your personal lawyer assist the appointed one.

Or you can ask your lawyer to take over the case. This, however, might mean tens of thousands of dollars in out-of-pocket expenses, depending on the complexity of the case and the length of the trial. It also may require the insurance company's permission. What if the company denies your request? You could ask your attorney about bringing a separate action against the insurer to pay for personal counsel due to its failure to provide adequate defense.

In short, if you're sued for malpractice, you must play an active role:

The author is a health law attorney with Kern Augustine Conroy & Schoppmann in Bridgewater, NJ, and Lake Success, NY. He can be reached by e-mail at

This department deals with questions on common professional liability issues. We cannot, however, offer specific legal advice. If you have a general question or a topic you'd like to see covered here, please send it to Malpractice Consult, Medical Economics, 123 Tice Blvd., Suite 300, Woodcliff Lake, NJ 07677-7664. You may also fax your question to us at 201-690-5420 or e-mail it to