Do You Defend Yourself or Settle Out of Court?
Do You Defend Yourself or Settle Out of Court?
By Julie Crawshaw
A strong defense against a lawsuit is important not just for reasons of justice or finance, but because a verdict or settlement against a physician can have lasting consequences. The reason is the National Practitioners Databank (NPD).
The NPD was created 10 years ago as a private, closed source for information for credentialing and to gather information to improve the quality of medicine. But the NPD has taken on new importance since March, when its files were opened to the public.
The data bank contains information on more than 229,000 malpractice payments and adverse licensure, clinical privileges, and professional association activities taken against some 146,000 physicians and dentists.
Opponents of opening the database point out much of its information, especially malpractice information, may be more misleading than helpful to consumers trying to locate a qualified physician or check their present doctor’s background.
These opponents argue that certain medical procedures are riskier and tend to attract more litigation. Plus, insurers often push physicians to settle claims rather than engage in expensive legal battles.
"Some of our country’s best physicians are involved in settlements, yet this data bank contains nothing that also reflects their high level of competence," notes AMA President Thomas Reardon, MD.
When a case is settled or there is a judgment against the health care provider, that fact typically has to be reported to the national practitioners data bank.
There are also individual state reporting requirements to medical boards. For example, in California a case settled for $30,000 or more must be reported to the state medical board, which may choose to investigate the case, taking more of the physician’s time and possibly resulting in action against his license.
Thomas A. Packer, a malpractice attorney, says these factors lead to a larger percentage of medical malpractice cases actually being tried as opposed to being settled. The physician who proceeds to trial and wins does not have to report anything to anyone.
Packer says that getting physicians to assent to mediation is always a critical issue. Conversely, sometimes the health care provider does want to settle the case but the insurer providing liability indemnity doesn’t. For general damages in a case with more than one defendant, if one defendant is determined to have been 60% responsible and the other is found 40% responsible, then there is only several liability and the defendants are required to pay in proportion to those percentages.
But if one defendant doesn’t have enough insurance or is otherwise unable to satisfy the judgment, the plaintiff can’t go against the other defendant for what he couldn’t collect. However, on the special damages, which is out-of-pocket, loss of wages, medical expenses, defendants are jointly and severally liable and plaintiffs can choose which defendant they want to collect from, or collect from both. A case that involves two or more defendants who are blaming each other can be extremely hard to settle.
If it looks like the plaintiff may prevail in court, it makes sense to settle the case and resolve any differences between the defendants later.
Packer emphasizes that getting a mediator who is respected by both sides and experienced in resolving cases involving health care providers is essential because of dynamics unique to medical malpractice cases.
"Media exposure typically emphasizes the plaintiff’s, not the defendant’s point of view," Packer says. "What people don’t realize is the negative effect a malpractice suit has on a medical professional’s life. These suits can drag on for several years, taking a terrible toll on the defendant’s practice and personal life. I think mediators often make the mistake of not empathizing sufficiently with the health care provider, and don’t spend enough time one-on-one with the defendant."
Any mediation is a dynamic, fluid process. In order to be effective, both sides have to really want to mediate the case, not just think about it and go to see what mediation is like. "It always comes down to dollars and cents, and sometimes you can’t bridge the gap between what the plaintiff wants and the provider is willing to pay," Packer says. A good mediator will make each side feel insecure about their case, which is what causes them to agree on a settlement.
"Malpractice prevention is good patient care," observes Raynes. For example, does a smoker find out right away that he has a tumor, or does he have to wait a year until it has metastasized into the bones? Raynes says that many physicians misunderstand the term standard of care as what is ordinarily done. It really is what a reputable physician would ordinarily do. "You can’t lose sight of the adjective reputable.’ People who are reputable continue their education, continue their training, and have experience," Raynes says.
Packer says that defendants frequently fear the jury’s response to a visibly damaged plaintiff. "The best way for a defense attorney to deal with the shock of a plaintiff’s appearance is to be open and frank with the jury, not to try and hide from it," he says.
A brain-injured child, or a disfiguring injury, emotionally charged family members, or a plaintiff who may be rapidly nearing death all create sympathy within the jury. A defense attorney needs to keep them in the open so the jury can put it into perspective and context and ultimately decide the case on the facts and the law.
Sources
1. Thomas A. Packer, Gordon Rees, 275 Battery Street, Suite 2000, San Francisco, CA 94111. Telephone: (415) 986-5900 Fax: (415) 986-8054. Web site: www.gordonrees.com.
2. Jeffrey S. Raynes, 454 North Arrowhead Avenue, San Bernardino, CA 92401. Telephone: (909) 888-6721. Fax: (909) 889-6063. E-mail: [email protected].
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