Malpractice: When to Settle a Suit and When to Fight

Neil Chesanow


September 25, 2013

In This Article

Making the Decision to Fight

There are plenty of reasons to settle a malpractice suit. But when do you fight?

"We go to court for 2 reasons," says Anderson of The Doctors Company. "One, we believe there's no liability; if there's no liability, we'll go to court and fight it. Two, if we believe there's liability but the plaintiff's demand is unreasonable, we would also go to court."

If there's no liability, Anderson says, "our record says that our chances of winning in court are 9 out of 10. When the facts favor us, we are more than willing and encouraged to go to court, as we win the vast majority of those battles."

But even when the facts don't favor the doctor, the doctor may still want a day in court, even against the lawyer's and insurer's advice -- provided, of course, that the doctor's policy contains a consent-to-settle clause that confers that right.

"Not every case has facts that are black and white," Anderson admits. "Often they're gray. But when a client says, 'I want to fight,' we go to war."

Many clients jeopardize their own cases by acting as if this were a proxy war fought on their behalf by their attorneys. They avoid getting involved as much as possible. But if you minimize your role in the process and your defense is weak, you will have only yourself to blame, experts assert.

"I would strongly encourage the doctor who is being sued to get in the game," McMenamin says. "By that I mean to actively participate in your own defense. I've encountered physicians who are so offended by this that they pull into their shells and go into denial. They want to ignore it. They want to take care of their patients and be left alone."

Doctors who want to leave everything to their malpractice attorneys give the lawyers too much credit, McMenamin cautions. "You may have a very smart lawyer," he says. "Maybe he's very experienced. That's all well and good. But except in rare circumstances, he's not a doctor, and even if he is, he probably doesn't have experience specific to your particular case. He needs to be educated, and you're the one to do it."

As a client, you need to be educated as well. "We work very hard to prepare our doctors for the stress of litigation and the whole process," Anderson says. "We have litigation retreats in which doctors actively in the middle of litigation can meet with colleagues who are in the same situation and with attorneys and professional counselors dealing with all of this. We do mock cross-examinations. Our defense attorneys prepare doctors for trials all the time."

Preparation is necessary for a host of reasons. Cross-examination, in particular, can be brutal. "The kinds of allegations that plaintiff attorneys make are intensely personal," Anderson says. "It's not just, 'We believe a different judgment should have been made.' The focus is on the fact that this doctor was negligent, this doctor was callous, this doctor was insensitive, cruel, and incompetent."

The ability of a doctor to make a good impression in the face of such a withering attack is an important part of winning a trial, McMenamin believes. "This is completely different from your mastery of surgery or psychiatry or whatever your specialty is," he says. "It's selling your version of events to the jury."


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