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When a medical professional is served with a malpractice claim or pre-suit notice, the first matter of action is alerting their insurance company that they have received the claim. This is done by supplying a copy of the complaint to the insurer and demanding immediate defense, alongside a cover letter explaining the situation (to the best understanding of the policyholder), and the insurance policy relevant to the claim. After reviewing the claim, the insurance provider will determine if their duty to defend the policyholder has in fact been triggered, under the circumstances. Insurance policies are subject to a great deal of ‘nitty-gritty’ clauses and fine print; this means the decision to fund the defense of a claim is made after a degree of careful consideration.
The Duty to Defend When a Med Mal Suit is Filed
Although a vast majority of policyholders are within their rights when they demand defense to a claim, there is the rare exception in which the claim exceeds the boundaries of their policy, and the insurer has no binding legal duty to defend them in the suit. Insurance companies practice exceptional prudence toward the denial of claims; should they wrongfully deny a claim and the court finds there was a duty to defend, the insurer could be liable for tort in bad faith (meaning they purveyed a wrongdoing unto the policyholder and may owe the policyholder damages as a result.) The insurance company is in the business of providing legal defense; for this reason, it is irrelevant whether the plaintiff prevails in the case or loses it. Ultimately, the insurer is only concerned whether the claim, if won, would be covered under the policy, thereby invoking their duty to defend. If any allegations in the claim exceed the limit of coverage, the company may not defend the medical professional.
Upon receiving a claim, the insurance company may choose between one of these four options:
- defend the insured unconditionally;
- defend the insured under a reservation of rights;
- seek a declaratory judgment that it has no duty to defend the claim; or
- decline to defend or to seek a declaratory judgment.
Most insurance companies opt to defend the insured under a reservation of rights, should they find the claim is covered by the policy. As mentioned, the latter two options entail denying the claim, which can get sticky if the insurance company is not certain beyond a shadow of a doubt that the claim falls outside of the policy. It is not a wise business decision to defend the insured unconditionally, as it requires the insurance company to waive their right to deny defense for any reason. This includes the claim falling outside of policy limits. Defending under a reservation of rights is as straightforward as it appears: the insurance company agrees to defend the insured but supplies a letter informing them that defense can be withdrawn at any time if it becomes clear that the claim is not covered.
Insurance Defense Lawyers
The insurance company often has a stable of lawyers or entire law firms to whom they consistently supply cases. These lawyers specialize in “insurance defense” and answer equally to the insurance company and the defendant medical professional. Although they have a sworn duty to adequately defend the medical professional, their legal discretion may be challenged and the costs of defense are audited by the insurance company. The ethical underpinnings of the relationship between insurer, insured, and insurance defense lawyer has been explored in legal academia.
Common Defenses to a Medical Malpractice Claim
There is also a stable of common defenses to a claim, which the attorney may draw on when building the case. They may try to argue that the patient’s injury was not the result of the negligence, but an unfortunate inevitability given their condition. To do this, the lawyer would use expert testimony to establish the universal standard of care in that medical field (what any other sensible professional would do under the same circumstances) and argue that the defendant did not depart from the standard/duty they owed the patient, and for that reason are not liable.
No Doctor-Patient Relationship
The defense lawyer may argue that aspects of the patient-provider relationship were not applicable under the circumstances. If they can successfully poke holes in the patient-provider relationship, there may not be a case against the defendant. If care was rendered in an emergency situation, for example, then the provider is not expected to thoroughly review the patient’s records prior to care – reviewing records is a facet of the patient-provider relationship.
The absence of causation is another means by which the defense lawyer can defend against the plaintiff’s claim. Medical tort law nationwide firmly holds that there must be a causal relationship between an act of negligence and the injury incurred by the plaintiff. If the healthcare provider acted negligently, departing from the standard of care, but their negligent action does not harm the patient and injury occurs by other means – this may be a viable defense to the medical malpractice claim.
Almost every state employs some form of contributory negligence doctrine, which allows the court to evaluate the claim with respect to ‘fault.’ An injury may be the fault of a doctor only in part, assuming it is at all. This law allows the court to consider if the patient contributed to or exacerbated their injuries in some way, and they may assign a percentage of ‘fault’ according to their findings. These doctrines usually operate on a “bar rule,” which sets a fixed percentage of fault that the plaintiff cannot exceed if they are to recover damages.
For example, if a state employs a 50% bar rule and the patient is found to be 60% at fault for the injury they incurred, then they are barred from recovering monetary damages in the claim. Majority of states employ either a 50% or 51% bar rule, and a minority of states allow the plaintiff to collect no matter how much at fault they are for their injury. If the court finds that the plaintiff’s share of the blame fell below the bar percent, 40% for example, then their share of awarded damages will be reduced by 40%. If the court awards $100,000 in damages in this case, then the plaintiff receives $60,000 of it.