05/24/2013– Fresno Dentist to defend malpractice litigation in a California...

COMMENTS

If a medical mistake happens (or not), you have to integrate the experience, but for a while you lose your bearings. It is discombobulating. When this is followed by litigation, the effect can be paralyzing and the lawsuit is felt like an assault. Being sued, even with assurances that “it’s nothing personal” and that my insurance would most likely cover any settlement, was in fact deeply personal. The experience was devastating. In these statements in a New York Times essay, physician Joan Savitsky talks about her own ordeal. She discusses how being sued affected not only her, but other patients as well.
Similar ordeal happened in Fresno CA, the heart of central Valley of California. It involved a Fresno Dentist. The difference here being none of the experts from either the defense or the plaintiff’s side testified that dentist committed negligence. Yet, she is being forced to settle due to the fact that experience has been totally devastating to everyone around her -her Family, her friends and her own self esteem.

In today's difficult economic times, with rising insurance costs and massive cuts to healthcare reimbursement rates affecting doctor’s bottom line, these rising cost of damage awards and settlements in medical malpractice cases continues to take a heavy toll. The recession, moreover, has done nothing to hurt the thriving business of filing medical malpractice claims. Hidden clause in malpractice policies is forcing many doctors around the country to settle out of court with patients filing malpractice suits against them even though they are completely innocent of any wrongdoings. To save time and money, their insurance companies want the case to "just go away" but they fail to consider the negative impact such settlements have on doctors.

According to "Rupp's Insurance and Risk Management Glossary" -- considered the insurance industry's authoritative standard -- "a settlement can affect the reputation and earning ability of the insured." An article in Medical Economics explained the impact of settlements in more detail. "The adverse effects can be significant. The settlement will be reported to the National Practitioner Data Bank, where the information will be accessible to hospitals as well as to any third party payers you contract with. Your status with these organizations could be affected and so could your future insurability with your present insurer or a different one. Your malpractice premiums could increase. ("Should you sign a 'consent to settle'?" by David Karp, Medical Economics, Oct. 20, 2006). This is the only reason dentist chose to go through a rigorous trial spanning over many weeks to “prove” their case. The outcome is Fresno case is still pending.

The consent to settle provision has become so important that many malpractice policies are beginning to include them, but are tacking on another clause that makes them nearly worthless: a "hammer" clause. The hammer clause practically forces you to settle against your will even if there is a consent to settle provision, by making it financially risky to reject the insurance company's settlement recommendations. Under the hammer clause, if you refuse a settlement offer recommend by your insurance company, the company's liability is limited to the amount of the recommended settlement offer.

For example: Your insurance company wants you to settle a case out of court for $25,000. You know settling the case will make it look like you're guilty, so you refuse to settle. If you go to court and lose your case, the insurance company will pay only $25,000 regardless of the final decision in the case. If the judgment is $75,000, you will end up being responsible the other $50,000. Another version of the hammer clause (called a modified hammer clause) limits the insurance company's liability to a percentage of the judgment in excess of the recommended settlement. It may, for instance, set a 50% limit. In the above case, the insurance company would pay the amount of the offered settlement ($25,000) plus one half of the amount over that figure ($25,000). You'd still to liable for the final $25,000.

There will be more written on this topic in days to come. Stay tuned ......

Dr. Kanwar Gill can be reached at AroundTheClockMD about his opinions and advice or you may call at 559 472 9895 for any questions on the above article.