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What's at Risk if a Lawsuit Is Successful?

On billboards and in television ads, plaintiffs' attorneys vow to fight like pit bulls to force doctors who commit malpractice to pay huge sums. It's no wonder so many physicians fear they could lose their homes or life savings in a lawsuit.

However, the reality is that the fear is overblown.

"It's a myth that lives on, despite the fact that it happens so rarely," said Michael Sacopulos, a defense attorney in Terre Haute, Indiana. "First of all, two thirds of malpractice claims are dropped or dismissed, and physicians win 90% of cases that go to trial. Almost all cases that reach a verdict are settled by the insurer without the doctor spending a penny of his or her own money."

Infrequent, Although Not Nonexistent

Although extremely rare, there have been isolated cases where a physician was required to contribute personal funds, said Nancy D. Miller, an attorney in Lakewood, Colorado, who works with malpractice insurers. "Generally, insurance coverage is adequate to settle the case—but there are exceptions."

Plaintiffs' attorneys have filed liens on doctors' bank accounts and property to force them to take a loan against their homes to pay off the excess judgment. They may force physicians to seek bankruptcy protection, she said.

How often does that happen? Anecdotally, it's extremely unusual, but it's almost impossible to quantify for certain. The legal system has no central repository of data about how those malpractice verdicts are collected.

"I know of one case where a physician blatantly lied on the witness stand," said Miriam Weizenbaum, a plaintiff's attorney in Providence, Rhode Island. "The judge was incensed and sanctioned the physician. That fine wasn't covered by insurance because it wasn't negligence, but an intentional act of wrongdoing. The doctor had to pay it out of his own pocket." 

Recovering a Physician's Assets Is Difficult

Each state has its own rules about which assets can be attached, but many physician assets are exempt from collection efforts.

"Remember when O.J. Simpson moved to Florida in 1999 after a civil jury found him liable in the deaths of Nicole Brown Simpson and Ronald Goldman?" said Michael Sacopulos. "One reason may be because the law in Florida says a defendant's residence cannot be attached. You could own a waterfront mansion worth millions of dollars, but a plaintiff won't be able to touch it."

Laws around the country also provide substantial protection for primary residences. "In Colorado, the law is that the first $105,000 of equity in a house for people aged 60 and older is exempt from execution," said Nancy Miller. "It's $75,000 for younger defendants.

"If the defendant is married, the house may be held jointly, making it more difficult to collect on," she said. "There's also usually a mortgage to be satisfied. Even in the rare case where the plaintiff can attach the home, he or she would have to market and sell it. It's a lengthy and costly process."

Joint accounts are considered marital property and are difficult to collect on. If your practice is a limited liability company, a building the practice owns can also be exempt. Retirement accounts, such as 401(k)s and IRAs, are often protected, as are cash-value life insurance policies, she said.

Transferring assets to a spouse provides less protection than many physicians think. "Any such transfer should be part of an overall integrated estate plan," said Nancy Miller. "If the transfer is made after the doctor had reason to know that he could face a legal judgment, and especially after a suit has been filed, courts have deemed those transfers to be fraudulent. So any protection would be lost."

In addition, lawyers say it's especially important to be confident in the strength of your marriage. If your spouse divorces you or dies before you do, any protection will be lost. If the spouse is holding assets that the defendant actually controls, a creditor might be able to collect. Transferred assets must truly become the spouse's property.

"Some doctors spend a lot of money on asset protection schemes," said Sacopulos. "They can be expensive. It's probably smarter to purchase more malpractice insurance." Nancy Miller believes the best asset protection is contributing to a retirement account.

Why Large Awards Are Usually Settled

Both plaintiff and defense attorneys agree that there's strong incentive on both sides to settle the case within the doctor's policy limits, which are typically $1 million per incident.

"Malpractice cases are lengthy and expensive," said Michael Sacopulos. "If the plaintiff's attorney succeeds—and that's a minority of the time—he wants a check and not an Easter egg hunt. The attorney has fronted tens of thousands of dollars in expert witness fees and other expenses. The client needs money to pay for current medical expenses. The attorney wants his contingency fee. No one gets paid until the case is settled, and insurance coverage is almost always enough to do that. To go after a doctor's assets requires protracted litigation that just isn't worth the effort."

Although some plaintiffs want the physician to pay something out of pocket, their attorneys will rarely make the attempt. "An angry client will often demand that the doctor be forced to pay something," said Miriam Weizenbaum. "The patient feels betrayed and wants the doctor to feel some pain. We always advise against this. Our purpose is to make the injured person whole again. We have no interest in destroying the doctor. It's not a personal issue. Trying to tap a doctor's assets can be a difficult, ugly fight."

James E. Beasley Jr, MD, JD, a plaintiff's attorney in Philadelphia, tells a similar story. "Any time a client says, 'It's not about the money; it's about teaching the doctor a lesson,' I get a little worried. If there's enough insurance to help the patient recover from this negligence, that ought to be enough. I tell clients, 'You won the case. You'll never get back to where you were before the malpractice. Why do you need an extra pound of flesh, and a possible 3-year war to try to collect the doctor's assets? It's time to close the chapter and move on.'"

Malpractice Insurers Fear Bad-Faith Lawsuits

If a malpractice insurer refuses to settle a case for an amount within policy limits, especially if the doctor requests it, the carrier could be liable for a bad-faith lawsuit. That means the insurer didn't protect the physician and put its own interests over the doctor's.

"Let's say the liability is clear, such as a surgeon leaving a foreign object in the patient," said Michael Sacopulos. "The doctor demands that the case be settled within the policy limit of $1 million. But the insurer may believe the case is defensible or the plaintiff's demand is too high. The case goes to trial and the jury awards $3 million, thereby exposing the surgeon's personal assets. The law is that the insurer is then gambling with its own money, not the doctor's, and can be required to pay the full verdict."

That's why insurers may pay something over the policy limits if there is an excess verdict. This isn't done out of altruism. If the insurer doesn't settle the case, the physician can file a bad-faith lawsuit charging that the insurer mishandled the claim and needlessly exposed his or her assets. Insurers want to maintain goodwill with physicians, who often have a choice about which malpractice carrier to select.

"If there's an excess verdict, the defendant doctor will often assign his bad-faith claim to the plaintiff and testify that he asked the insurer to settle for coverage, but the insurer refused," said Nancy Miller.

"The law, at least in Rhode Island, is well established," said Miriam Weizenbaum. "If the insurer refused a settlement offer for within policy limits and the verdict comes in higher, the insurer is on the hook for all of it, not the doctor.

"It's wise for a physician to retain her own attorney to send a letter to the insurer demanding settlement, so that she isn't personally exposed," Weizenbaum said. "If doctors are so concerned about protecting their assets, it baffles me why so many never get their own lawyers. Often at malpractice trials, one lawyer hired by the insurer is defending several doctors and/or a hospital or clinic. Doctors need to get an independent perspective to make sure the insurance company lawyer isn't cutting corners or favoring one defendant over another."

James Beasley said it's generally easier to fight an insurance company in court than go after an individual doctor's assets.

What Insurance Usually Won't Cover

Insurance policies cover negligence in the practice of medicine. They don't cover punitive damages or other "intentional" torts—meaning willful actions, such as sexual harassment.

The insurer will usually provide a defense for the doctor in a case involving inappropriate relations with a patient, or a privacy violation. But it will do so under a "reservation of rights" clause, meaning that the doctor could be on the hook for any indemnity award, said Miriam Weizenbaum. "Even then, depending on how strong the case is, the insurer might be willing to pay a portion of the award while the doctor pays the rest."

Punitive damages are excluded from all insurance policies. Such awards are rare. "It has to be outrageous, almost intentional misconduct," said Sacopulos. "For example, an oncologist who cuts his patient's dose in half so he can make more money. It isn't an honest mistake. It's a deliberate action, bordering on the malicious."

A physician also can blow his coverage and leave his personal assets exposed. Some insurance policies specify that alteration of medical records can cancel the policy, whereas while others will still provide a defense and pay the award, lawyers say.

Not cooperating with the insurer in the defense of the case can cause cancellation of the policy. "Coverage can be withdrawn. An attorney can't properly defend a doctor who won't return his or her phone calls or prepare for depositions and trials," said Sacopulos. "That's written into every policy.

Finally, the doctor's assets could be on the line if his or her insurer becomes insolvent. Although that's also rare, it has happened. Most states have guaranty funds to cover policyholders if a licensed insurer is in financial trouble. However, the amount is often less than what a jury may award, and physicians have been required to pay something out of their own funds. Doctors should be wary of companies with deeply discounted premiums that might not be around when the claim comes due.

Why the Fear of Losing Your House Persists

If attaching a physician's assets is so rare, why do so many doctors worry about it? Predictably, plaintiffs' and defense attorneys disagree on this.

"Any doctor who has ever given a deposition or testified in court soon realizes just how aggressive plaintiffs' attorneys can be," said Michael Sacopulos. "It's not hard to think that they'll gladly go after your house and life savings."

Physicians are out of their element in litigation, so fear of the unknown plays a role. "Doctors work hard, and their homes are important to them. A lawsuit threatens the stability of their lives," said Nancy Miller. "Having to pay personal assets may be rare, but it's certainly possible, and no one can guarantee that it will never happen."

The other aspect may be the law of odds. Even if the potential consequences are rare, they're terrible if they happen to you—and for many, that's worth worrying about.

(from Medscape Business of Medicine)

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