A controversial case of medical malpractice resulted in a $1 million award recently in a federal court. The case of Claudia M. Mora et al. v. Lancet Indemnity Risk Retention Group Inc. began when Juan Castillo sought treatment from Dr. Ishtiag Malik for pains in the chest region and shortness of breath. Dr. Malik ordered a stress test and prescribed a beta blocker; however, he did not issue a referral to a cardiologist, as would have been standard procedure. Castillo died approximately one week later.
Defendant Leaves for Pakistan?
Castillo’s family brought a lawsuit against Malik and Lancet Indemnity, his malpractice insurance company. As the legal defense team began preparing, they became aware that Dr. Malik could not be located. The plaintiffs began investigating and provided the defending insurance company with two possible addresses in Pakistan where Malik may be residing. The insurer was unable to locate their client and felt that they are “ethically barred” from representing Malik and defending the case.
Defense counsel stated they had been unable to communicate with Dr. Malik. They believed that this communication was a requirement in order to obtain proper consent to represent the physician. Counsel explained that it may “constitute an ethical violation” and make them subject to potential liability. The insurance policy provisions did contain a clause that addresses these unusual situations.
Clause in Policy
The policy was said to contain a “Cooperation and Assistance” provision that requires the insurer to assist and defend all claims. It goes further to explain that this includes submitting to examination, hearings, and other aspects of representation. This clause was defined as being an “advance consent” provision. Essentially, the court found that Lancet had a duty to defend the claim regardless of Dr. Malik’s whereabouts.
The U.S. District Court in Maryland entered a finding in favor of the plaintiff. They deemed that Lancet should have been able to use the medical records involving Castillo’s treatment to determine if the standard of care was maintained. A panel of three judges all agreed in this matter. It is not known whether the defense intends to appeal the ruling further.
In this case, Dr. Malik had prescribed beta blockers to the plaintiff. The following facts pertain to their medications:
- These are also known as beta-adrenergic blocking agents that are capable of lowering blood pressure
- They are able to reduce the effects of epinephrine (adrenaline)
- Generally, they will reduce heart rate
- Blood vessels are typically able to open and allow better blood flow
- Beta blockers are generally not the first option for reducing blood pressure–other treatments must prove ineffective
Duty to Defend
Policyholders are generally to assume that their insurer is responsible for defending a claim; however, there are some rare instances where the insurer would not be bound to this duty. If an insurer wrongfully refuses to defend a claim they may be deemed as “liable for tort in bad faith.” Insurers generally will choose to defend the insured party unconditionally, under a “reservation” of rights, or pursue a judgment that no duty exists.
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