Paying for Settlements to Plaintiffs: Who Pays?
Only 9% of physicians said their insurer demanded that they settle. Another 21% said the insurer encouraged a settlement. Only 2% of physicians said they had to pay part of an award from their personal funds.
"COPIC, like most insurers, has a 'consent to settle' clause. That means we cannot demand that a doctor settle a case she'd rather defend," said Dr. Lembitz. "However, when we think the case is indefensible, we will provide overwhelming evidence from the doctor's peer that she'll lose at trial."
It's rare for a physician to have to pay for an award out of his or her own pocket. But it does happen. One scenario is when an award exceeds the insurance coverage in a case the insurer wants to settle, but the physician is adamant about going to trial.
"Before trial, we'll notify the doctor of the potential of a verdict that may exceed the policy limit," said Dr. Anderson. "If the doctor still refuses, the insurer isn't obligated to pay anything beyond the policy limit. This happens rarely. As a practical matter, insurers will cover an excess verdict."
Sam Rosenberg recalls a case where a famous eye surgeon decided to pay a settlement of about $50,000 from his own funds. "The carrier didn't think he did anything wrong and wanted to go to trial. It would have taken 3-4 weeks. The surgeon figured he'd lose money by sitting in court being away from his practice for that long. So he just wrote a check to settle it."
The Horror of Being Sued
Almost 40% of physicians who were sued said the experience of being sued was either "horrible, one of the worst experiences of my life" or "very bad, disruptive and humiliating." Some 29% of physicians said "I no longer trust patients. I treat them differently" as a result of being sued.
For many doctors, the lawsuit affected many aspects of their life, not just their practice. Some comments:
• "The man who sued had his children leave phone messages for me and the other doctors involved, saying I was a murderer. And I was not even the child's doctor!"
• "The lawsuit nearly caused a divorce. My wife thought I should settle to avoid the misery of the prolonged proceedings."
• "It soured me on obstetrics, which I quit as soon as possible thereafter."
• "It hangs over your head for years, causing you to second-guess everything you do."
• "I still have to list the suit on all licensing applications, even though it was thrown out."
A belief in practicing defensive medicine shone strongly from those who had been sued. This is a key finding: While the nation focuses on ways to lower the costs of healthcare, physicians who were sued are adamant that they'll do whatever it takes to prevent being slapped with another lawsuit. Some comments along those lines:
• "It is perfectly legitimate to order every test that you feel is acceptable to prevent another suit."
• "Don't assume ANYTHING! If it hurts, CAT scan it."
Little can prevent the trauma of being sued, but liability insurers and defense attorneys remind physicians that lawsuits are as common as squirrels in a park. As noted above, a large percentage of doctors can expect a lawsuit sometime in their career. Early-intervention programs that encourage disclosure and prompt settlement offers of meritorious claims can lessen the impact, however, and keep physicians out of court.
The main message to physicians being sued: You are not alone. Medscape's results are in line with those of other recent studies. More than 42% of physicians have been sued for malpractice over their careers, and more than 20% were sued at least twice, according to a 2010 American Medical Association survey.
Medscape Business of Medicine © 2013
Cite this: Lawsuit: 'The Worst Experience Ever' and 'A Total Surprise' - Medscape - Jul 24, 2013.