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AAOS Now

Published 11/1/2008
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Almor Afonso

Settle or go to trial? Assessing a medical liability claim

A perspective from an insurance claims executive

A medical liability lawsuit is a concern every practicing orthopaedic surgeon considers at one point or another. Whether the claim is warranted or not, the experience is universally distressing and takes precious time away from treating patients. Surprisingly, it is not necessarily just the facts surrounding the medical care that will ultimately determine whether a case is settled or defended through trial. When reviewing a claim, a medical liability insurance company carefully considers multiple factors before making its decision to settle or go to trial.

In what condition are the records?
Medical records should be detailed, complete, and unaltered. Any omissions or alterations made after the incident will leave the defendant vulnerable. If any questions about the medical records exist, the insurance company may consider settling because it does not have the foundation necessary to build a strong defense.

Is the case defensible?
Assuming the medical records are solid and the physician has done a good job of documenting the patient’s history and treatment, the insurance company will then examine whether the case is medically defensible. Medical experts will be asked to review the medical records and render their judgments as to whether the standard of care was met. They will also examine whether the alleged negligence caused the resulting injuries; this is referred to as causation. One of the most important factors in determining whether to settle a claim or bring it to trial is the support, by reputable medical experts, of the physician’s care.

What is the defendant like?
A fair trial is no place for a popularity contest, but sometimes likability can weigh heavily on the scales of justice in a medical liability case. Defendants who can communicate effectively and maintain their composure will fare better in a trial. If a juror feels he or she would seek care from the defendant, the possibility exists that the juror will find for the defense.

Although some techniques can be taught and are part of the pretrial preparation, many of the characteristics that juries relate to and perceive favorably, regardless of the facts surrounding the trial, are innate. A defendant who comes across as hostile, unsympathetic, condescending, or unsure is more likely to have an unfavorable verdict in court.

How severe was the adverse outcome?
The severity of the plaintiff’s damages, disfigurement, or loss of quality of life can also affect a jury’s decision. Regardless of whether an adverse outcome was due to a physician’s negligence, visible harm and its physical presence before the jury will almost always be a disadvantage for the defense. Although an insurance company may consider this factor, it does not base its decision solely on jury sympathy.

What might a jury award?
Another important consideration is an estimate of what the claim amount would be if the case is decided in favor of the plaintiff. If the jury awards the plaintiff an amount in excess of the policy’s limits, the insurance company would probably encourage a settlement to protect the insured’s financial interests. Ascertaining a figure is difficult, however, and may depend on the damages to the plaintiff, the site of the trial, and judgments in similar cases in the past.

How many defendants are involved?
An insurance company will look at exactly who is involved. A claim may name multiple physicians or institutions in a single case. With multiple defendants, disagreement on whether to settle or go to trial is possible. If the defendants cannot reach a consensus, the company will make the final decision, while keeping in mind the best interests of all the parties involved.

Is consent to settle required?
One of the factors considered in a claim assessment is whether the physician’s consent to settle is required. Some policies include a provision that essentially requires the company to receive a physician’s explicit consent to settle a case rather than to take it to trial. Not all policies include this clause, but many companies value the input and involvement of physicians in the decision-making process.

The final outcomes
Once claims have been assessed using these criteria, what is the result? ProMutual Group operates in eight states. Within the last 5 years, 78 of our insured orthopaedic surgeon policyholders settled a claim. The average settlement amount was $285,000.

According to the same data set, 43 out of the 44 defendants who went to trial in that time period received a verdict in their favor. The only plaintiff verdict resulted in an award of $9,700. On average, the company spent $33,340 in defense costs per claim.

Throughout the process, a physician and his or her insurer must have candid conversations about the details of the case, possible outcomes, and the appropriate approach. Although a medical malpractice claim is neither easy nor pleasant, success in the courtroom is achievable through a closely allied team consisting of an actively involved physician, his or her insurer, and a carefully selected defense attorney who specializes in medical liability cases. Physicians should consider these factors carefully when selecting an insurance company. The skill of a carrier’s claims department and the approach used in dealing with a claim are keys in protecting the practice of good medicine.

Almor Afonso is vice president of claims, ProMutual Group. This article was prepared at the request of the AAOS Medical Liability Committee.