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You paid more than enough for malpractice insurance, so why would
you need an additional attorney, or even several. And why would
you have to pay for them? This is often a shocking question, and
the answer is a poorly understood truth. Malpractice insurance offers
only partial coverage of the problem, and you may well have to add
to it.
How could this be true? Well there are several reasons:
1) You have a risk of exceeding the aggregate coverage of your policy.
2) The insurance company has a different purpose. They are looking
at different overall goals, and you are only one part of theirs.
Thus they may feel settlement is reasonable, but you don't.
3) There are multiple defendants such as hospitals, doctors, nurses
and PAs. This can create tradeoffs where the decision of the insurance
company is different than your interests.
4) Other issues created were not covered by the policy. The plaintiff
at their attorney's recommendation reported you to the state licensing
board or they complained about your billing. Defending the consequences
of these is unlikely to be covered in your policy.
Thus you may need a personal attorney who has worked with physicians
sued for malpractice. Plaintiff's lawyers are often best suited
to be personal counsel. It is also true that a defense attorney
with the right experience can be a good choice. You want the viewpoint
of plaintiffs counsel in order to see your strategy from the other
side.
You need someone with experience in both sides of the cases, who
will look for tactics teh defense attorney is not used to.
They also may not be able to act in certain matters because they
have an inherent alignment with the insurance company. It can be
unethical for a defense attorney to take a position adverse to the
insurance company in matters such as coverage questions.
It may be helpful to ask a prominent plaintiffs attorney about your
assigned defense attorney. It is easier to switch early in the process
with a call to your insurance carrier.
Your personal attorney will monitor the case to be sure that you
are not at significant risk for an excess verdict. You want them
to be familiar with the case and its details. This does not entail
repeating the work of your defense attorney, but it may help ensure
that work is complete.
In most cases, this will cost several thousand dollars. But your
personal counsel should be able to give you an estimate in your
case.
Your personal counsel can demand they take every action to resolve
the matter within your coverage. This is almost always accepted.
If it is not resolved withing your coverage and there is an excess
verdict, then you can assign to the plaintiff your bad faith claims
against the insurance company in exchange for being released from
excess liabilty. This is a stronger case than trying to collect
against you. It is not known by plaintiffs counsel during the case,
and does not make the case harder to defend. If the insurance company
roles the dice, they then bear the risk.
Your personal counsel also can help if there is a dispute about
whether an insurance policy by your professional
corporation adds another layer of coverage. This is a common
battleground.
Your personal counsel should be at your cross examination at trial.
That is commonly the most important contribution at jury deliberation.
Consider early if you need a personal counsel, and look carefully
to make the right choice.
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