One Way to Avert a Sky-High Malpractice Award

Mark Crane

Disclosures

October 06, 2011

In This Article

When to Seek a High-Low Compromise

When do insurers recommend high-lows?

Catastrophic Damages

"Take the scenario where a physician can be defended on the standard of care but the damages are catastrophic and the plaintiff is very sympathetic," says Cheryl M. DeKleine, an attorney in Morristown, New Jersey, with Coverys, a professional liability insurer. A case involving a neurologically impaired infant with tremendous future medical expenses might be a candidate for a high-low.

"We also utilize high-lows if the doctor's liability is questionable but the physician might be unsympathetic as a witness," she says. Physicians with an arrogant or insincere courtroom demeanor could inflame a jury.

Unsure of Winning

"High-lows are often requested by plaintiffs' attorneys if they are not sure they will be victorious at trial and are concerned about recouping some of their expenses plus obtaining some compensation for their clients' injuries," she says.

James Lewis Griffith Sr., an attorney in Philadelphia who represents both plaintiffs and physicians, agrees that half a loaf is sometimes better than none. "There are cases where the plaintiff cannot face losing because of their medical expenses and loss of income. A high-low gives them some assurance of vindication and funds."

Winning a multimillion-dollar verdict against a doctor may boost an attorney's ego, but the case could be stuck in appeals for years before the client or attorney receives any compensation. "A high-low guarantees that if the plaintiff's attorney wins, the client will at least receive the high amount in a timely manner," says DeKleine.

Risk for an Excess Verdict

Insurers also have an incentive to use a high-low to cap their own exposure. "The insurer may have failed to negotiate in good faith and is looking at a potential verdict in excess of the doctor's policy limit," says Griffith. "That could lead the physician to sue the insurer for bad faith. By seeking a high-low, the insurer eliminates the risk for an excess verdict and can argue that it acted in good faith by making such an agreement."

Physicians Get a Chance to Be Heard

A majority of physicians have "consent to settle" clauses in their policies, requiring their approval of any settlement offer. "Physicians who believe they met the standard of care naturally don't want to settle," says Leone. "A high-low gives them their day in court and a chance to be vindicated, while limiting their exposure."

Still, physicians tend to resist high-low agreements, says Peter W. Brandt, a defense attorney in Bloomington, Illinois. "High-lows tend to come late in the trial. In my experience, doctors feel that since they have already endured the trial, why settle at this point? If they've got an exposure for millions of dollars, we make a concerted effort to bring home that risk. But we never force a client to make a decision against his or her will."

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