A doctor who is being sued for medical malpractice has to decide whether to settle the case or go to trial. This decision has legal, practical, and ethical implications. The defense team, which includes the doctor, the lawyer assigned by the insurance company, and the adjuster, must weigh the risks and benefits of settling the case. The doctor’s wishes are important, but ultimately the insurance company makes the final decision. The lawyer advises the doctor on the potential personal risks and financial consequences of settling or going to trial. Scenario One: If both the doctor and the insurance company don’t want to settle, the defense team will vigorously defend the case and only 37 percent of cases end in a settlement or judgment.
Scenario Two: If both the doctor and the insurance company want to settle, the defense team will try to settle for the smallest amount possible. Sometimes, they may have to go to trial even if they want to settle, but there’s no conflict of interest for the defense attorney in these situations. Scenario Three:
Sometimes a doctor may change their mind and want to settle a lawsuit, even if the insurance company doesn’t agree. In these cases, it’s helpful for the doctor to have their own personal lawyer to advocate for them. The insurance company’s lawyer is supposed to be neutral and point out both the strengths and weaknesses of the case, but a doctor’s personal lawyer can push for a settlement and explain why it’s important for the doctor. They might even send a letter to the insurance company saying why it would be unfair if they don’t settle. However, there are certain legal reasons that need to be considered when deciding to settle, and simply feeling inconvenienced or stressed isn’t usually enough. In some rare cases, the doctor’s lawyer may try to make an agreement with the person suing the doctor to pay more than the insurance limit. If this happens, the doctor gives up their right to sue the insurance company and the person who sued gets a release. But, this might break the rules of the insurance policy and the insurance company might say there’s no money left to pay the claim.
On the other hand, sometimes the insurance company might want to settle a case even if the doctor doesn’t want them to. The law says the insurance company can settle as long as it’s good for the doctor, but sometimes the doctor might not agree. In some recent cases, doctors in Florida went to court because they thought their insurance company didn’t do a good job of defending them. But the courts said the insurance company can pretty much do what they want when it comes to settling cases. Dr. Rogers sued his insurance company, Chicago, because he believed they settled a lawsuit against him without investigating properly. He said this caused him to pay more for insurance. The court dismissed his case, saying doctors can’t sue their insurance companies for settling cases. In another case, a doctor tried to undo a settlement his insurance company made, but the court said he couldn’t. The Florida Medical Association supported the doctor’s case, but the court still ruled against him. The insurance company can make the final decision on settling a claim, but in some cases, the doctor’s agreement is required. If the doctor disagrees with the settlement, their lawyer cannot participate in the negotiations. After a settlement is reached, the lawyer may not ethically prepare the closing papers without the doctor’s approval. If a doctor doesn’t have insurance, it makes it harder for a patient to get a fair settlement if they are harmed. Other doctors involved in the case may feel unfairly targeted because of this. For the defense team of the uninsured doctor, they have to handle things differently because there’s no insurance company to help. The doctor could face disciplinary action if they don’t follow certain rules. One option is for the doctor to make a payment plan with the patient to settle the case. An advantage for the uninsured doctor is that the settlement doesn’t have to be reported to a national database, so it won’t affect their record. If a doctor doesn’t have insurance and gets sued for malpractice, their lawyer will want to know about their money and assets before they agree to a settlement. Florida’s laws protect some of a doctor’s money and property from being taken in a lawsuit. It can be really expensive for a doctor to go to trial, so they might decide to settle the case instead to save money. The decision to settle a case can affect a doctor’s future job opportunities and reputation. In recent years, more doctors in Florida don’t have malpractice insurance, which can make things even more complicated.
Source: https://www.floridabar.org/the-florida-bar-journal/legal-practical-and-ethical-considerations-of-medical-malpractice-settlements/
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