Doctor, when is the best time to treat an infection? As soon as possible, right? Timely care usually means that the least amount of harm has occurred, options are available, and a better prognosis. If significant time passes before an infection is treated, sometimes it’s “better late than never,” but sometimes it’s “too little too late.”
The same is true for retaining personal counsel. Personal counsel is most effective if utilized as soon as possible. If significant time passes before a doctor retains personal counsel in a medical malpractice claim, sometimes it’s “better late than never” but sometimes it’s “too little too late.”
An unfortunate example of hiring personal counsel too late occurred during the 14-year medical-legal saga of Dr. M.S., a north Florida plastic surgeon. Dr. M.S.’s patient died after a liposuction procedure. The Estate hired legal counsel and issued a 90 day “Notice of Intent to Sue” to Dr. M.S., in accordance with Florida law. Dr. M.S. forwarded the notice to his insurance carrier, First Professionals Insurance Company, Inc. (“FPIC”).
FPIC assigned Dr. M.S. legal counsel to defend the case. The assigned legal counsel was paid for entirely by FPIC. During the pre-suit period, the plaintiff offered to go to voluntary binding arbitration. Notably, the offer to arbitrate required Dr. M.S. to admit full liability for the claim and the arbitration would simply decide how much the damages were. Based on FPIC’s review of the case, and the advice from his assigned counsel, Dr. M.S. agreed to go to arbitration.
Six months after Dr. M.S. agreed to go to binding arbitration, he hired personal counsel. Dr. M.S.’s personal counsel determined that the case was defensible, the offer to arbitrate was made in error, and that Dr. M.S. did not wish to arbitrate. Unfortunately, the Court ruled that Dr. M.S. had agreed to voluntary binding arbitration and ordered the voluntary binding arbitration to proceed.
This was devastating to Dr. M.S. as voluntary binding arbitration meant that he: (1) admitted to negligence and liability, and (2) waived all defenses on liability. Arbitration would simply to determine how much Dr. M.S. would pay in damages. The arbitration award was $35,415,789.00 plus interest to the Estate. A $43,000,000.00 judgment was entered against Dr. M.S.
Dr. M.S. was wise to retain personal counsel. Unfortunately, it was “too little, too late.” Critical legal decisions were made and there was no walking them back. If retained at the outset, the personal counsel could have advocated for Dr. M.S. before the critical offer to arbitrate was made. Personal counsel could have advised Dr. M.S. on the implications of admitting liability and arbitrating damages.
There is a lesson to be learned. Early legal decisions will have a significant impact on your defense. If you are confronted with a potential medical negligence claim, it is advisable to retain personal counsel as soon as possible to best protect your interests.