Is Your Malpractice Lawyer Giving the Best Possible Defense?

Anne L. Finger, MA

Disclosures

May 22, 2014

In This Article

Is Your Lawyer on Your Side?

Facing a malpractice lawsuit is an unnerving situation. But when you doubt the allegiances or efforts of the lawyer who is representing you, your anxiety is sure to worsen. Is there cause for such concern?

The potential for a conflict of interest is inherent in the arrangement, says William Sullivan, DO, JD, who practices emergency medicine and law in Frankfort, Illinois.

The malpractice defense attorney practices in an unusual legal environment: Although the physician is his client, he's paid by a third party -- the insurance company, says Sullivan. And the insurer's decision-making will undoubtedly involve its bottom line in ways that may negatively affect the physician's defense, especially with regard to the all-important decision about whether to settle or proceed with the case.

"The opportunities for conflict of allegiance are obvious," writes Haavi Morreim, JD, PhD."Preferred attorneys have an incentive to win the insurer's continuing esteem so they can remain on the list, even as they have an obligation to serve the insured defendant. Despite the legal profession's usually stringent rules regarding divided loyalty, many defense attorneys openly regard the insurer as a 'client' right alongside the defendant, of whom they are the avowed fiduciary."[1]

Notwithstanding the above, says Sullivan, although the potential for a conflict of interest is always there, "in most cases, it doesn't rise to the level where it becomes a problem."

But how do you know when it has reached the problem level? And if it has, what can you do to protect yourself? And can you do anything before any claims are filed against you, to avoid getting into a situation where you can be harmed by representation that truly doesn't represent your interests?

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