Unsettling Issues About Settlements

Cases in which there is are sufficent concerns are likely to settle. There are a number of issues in settlement. One is that settlement results in report to board of registration, and to the National Practitioners Data Bank.

Your insurance carrier will likely address settlement as they get information in the case, particularly after the plaintiff's deposition. This is not the issue of malpractice vulnerability per se, but the potential loss if a verdict goes against them. It includes the current income and potential future income loss of the plaintiff. Debt and liens for expenses that may be involved are looked at. Medical expenses that may be covered are another. A key issue is how sympathetic and believable they are to the jury. This estimate tells them their potential vulnerability.

Your carrier will also have the case reviewed by an inhouse or outside physician, or both, to estimate its defendability. These reviews are ones you may know little or nothing about, so you can be very wise to suggest a reviewer of your own. It should be someone in your specialty, and not a physician you know.

Settlement occurs throughout the process, even while the jury is out. The decision to settle is made based on your policy requirements, but some policies will require your consent to settle. However, once you consent you may have little control over details that are important to you. This is partly due to the speed of negotiation and to the judgment of the negotiator. Be sure to consider and communicate details important to you ahead of time. Furthermore, this is a time to have your personal attorney directly involved. Be sure they are briefed and consulted along the way. They can't be effective if they are not kept up to date and then called in late.

You want a confidentiality agreement to present gossip and distortion in the community. Be sure to review it. The confidentially agreement binds the two sides, but other parties may not be bound. For example relatives of the plaintiff, and you may want to address this. Also, should a settlement occur during a jury trial, the jury is not bound by it, and can discuss it, even with the press.

Did the settlement settle the matter? Not always. The plaintiff will sometimes try to undermine the settlement with claims that they did not understand the agreement or it was misrepresented. You can make it more secure if the plaintiff signs as well as their attorney, and if there is a court order that a settlement has occurred. Be sure to discuss this with your personal attorney as well as your defense attorney.

The reporting of a settlement to the NPDB and the state will be done by the insusurer. Your have the right to appeal this, and here you can head off more trouble. The insurer may just send in the plantiff's complaint, which was written to be as bad as possible. The NPDB prefers disputes to be dealt with by the insurance company before it gets to them. They have a dispute process, but it is a higher level one. Be sure to tell your insurer you want to review the report before it is sent in. This is much easier than disputing it later.

The bottom line is that settlements can be anything but settling, if your are not careful.