A quick settlement can seem very appealing to any EP defendant facing protracted litigation. EPs should be aware of the repercussions of this, warns Rodney K. Adams, LLM, JD, an attorney in the Richmond, VA, office of LeClairRyan.
“Multiple reporting requirements and various repercussions are all a bit more salt in the wound for any emergency medicine physician that settles a case,” Adams says.
In Virginia, these include reporting the settlement within 30 days to the Virginia Board of Medicine, updating the physician profile webpage maintained by the Virginia Department of Health Professions, and disclosing the settlement in applications for credentials with hospitals and health insurers.1
“Many of these mandatory reporting requirements trigger further events,” Adams says. “State medical boards can reprimand or otherwise sanction a physician, though it is fairly uncommon.”
The board of medicine undertakes at least a perfunctory investigation of every matter that is settled. “This is becoming the practice in most states,” Adams says. In fact, physicians licensed in multiple states are often surprised to be sanctioned by a board for failure to report a settlement or a disciplinary action in another state.
Virginia’s board requires physicians to undergo a competency assessment if three medical malpractice claims of $75,000 or more are paid in a 10-year period.
“Some insurers and HMOs routinely remove a physician from their panels, and require them to appeal or re-apply to be reinstated,” Adams notes.
Categorize Med/Mal Case
When Jesse K. Broocker, JD, an attorney at Atlanta-based Weathington Smith, advises EPs on how to approach settlement, his first step is to appropriately categorize the case.
“Is this a slam-dunk defense? Is this a really bad case? Or is it somewhere in the middle where both sides have a tenable theory?” he asks.
In Broocker’s experience, if the plaintiff’s case is really strong and there is significant exposure beyond insurance protection, EPs typically prioritize protecting their personal assets. Many cases fall into more of a gray zone, however.
“We feel like we can defend the case,” Broocker says. “But a reasonable settlement provides some surety, because we know the plaintiff has a legitimate case. A jury of 12 random people may like their story better.”
The EP faces a difficult decision as to whether to refuse to settle a defensible case, Broocker warns. There’s always a chance of losing at trial.
“There are no guarantees in this business,” Broocker says. “But no defense attorney worth his or her salt should be pushing settlement for the sake of settlement.”
Rather, the EP and defense attorney together should analyze the strengths, weaknesses, and potential exposure of the case.
“EPs are in a better position compared to other specialties to engage in a true cost/risk benefit analysis,” Broocker adds, noting other specialties have more to worry about regarding public disclosure. “But for the ED physician, the public disclosure requirement is not really much of a concern, because patients don’t choose their ED doc.”
No one wants to “acquiesce” on a strongly defensible claim, says Broocker, “so usually we are all on the same page for defending. But I never tell my docs to ignore truly reasonable settlement offers.”
Ball in EP’s Court When Reporting
EPs typically worry about disclosing a settlement during the credentialing process. In reality, they might not get away without disclosing the suit, even if the EP prevails at trial.
“We are seeing more and more hospitals requesting disclosure of even being named in a lawsuit,” Broocker says.
However, credentialing and licensing committees won’t necessarily view a settlement as evidence of negligence.
“They’ll look to the whole picture,” Broocker explains. “They can understand why an EP who provided good care may still want to settle a particular case if the price is right.”
For instance, a case involving a large amount of potential damages may have been in a jurisdiction notable for large jury verdicts.
“Risk folks understand why docs settle cases — especially ED cases, where the outcomes can be catastrophic, and jury verdicts can be huge,” Broocker says.
As far as reporting to the state licensing board, EPs can mitigate the negative repercussions of this as well.
“The ball is in our court initially as far as reporting,” Broocker notes. “We choose how these folks get introduced to the prior ‘incident.’”
If the case is legitimately defensible, says Broocker, defense attorneys “can usually present the case in a pro-defense way.” Barring extreme circumstances, such as large numbers of lawsuits or egregious negligence, review committees typically work with the defense to understand the nuances that led to settlement of a claim.
“If we know the case has a legitimate defense, we should not be worried that these reviewers will see settlement as an admission of fault,” Broocker says.
REFERENCE
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Adams R. Virginia Medical Law. Third Edition. Commonwealth Medico-Legal Press; 2012.
SOURCES
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Rodney K. Adams, JD, LeClairRyan, Richmond, VA. Phone: (804) 343-4173. Fax: (804) 783-7637. Email: [email protected].
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Jesse K. Broocker, JD, Weathington Smith, Atlanta. Phone: (404) 524-1600. Fax: (404) 524-1610. Email: [email protected].
