Tag Archives: Personal Counsel

The Importance of Timely Retaining Personal Counsel

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.

Personal Counsel protects doctors not insurance companies. Every doctor being sued for medical malpractice should have a personal counsel

When a doctor with malpractice insurance gets sued, the first thing he or she should do is forward the lawsuit to their carrier. The first thing a carrier will do is determine if it owes coverage to the doctor.   Sometimes the insurance company determines the claim is not covered by the policy.  Sometimes the insurance company will cover the claim but reserve their right to withdraw from defending the doctor. In either event, personal counsel can advocate for the doctor’s best interests.

If the insurance company determines that the reported claim is covered by the policy, the insurance company will appoint and pay for a lawyer to defend the insured doctor.  The insurance-appointed lawyer has obligations to both the doctor and to the doctor’s insurance company.

The Florida Bar permits insurance appointed attorneys to represent both the carrier and the doctor but has placed rules on such representation to avoid potential conflicts of interest.   For example, the insurance-appointed lawyer must provide the doctor with a “Statement of Insured Client’s Rights” form.  This is a very important document that doctors often sign without reading.  Notably, the form contains a paragraph about hiring your own lawyer, also known as personal counsel.

Personal counsel serves an important concurrent role in the doctor’s defense.  Personal counsel is a lawyer that is hand-selected by the doctor. Unlike the insurance-appointed lawyer, personal counsel’s obligation is to the doctor only.

Personal counsel serves an oversight role, monitoring the defense provided by the insurance company and always with the doctor’s best interest in mind.  Personal counsel can analyze the facts and relevant law in order to assist in the evaluation of the doctor’s risk and personal exposure.  Personal counsel can provide a valuable second opinion on the merits of the case and the potential exposure.

Personal counsel can make recommendations to the insurance-appointed counsel to help evaluate the case and move it towards a more favorable resolution.  Personal counsel can encourage the settlement of lawsuits where the value of the damages claimed are beyond the limits of the insurance policy.

Personal counsel can be a great ally and advocate, however personal counsel is not required.  Personal counsel will cost the doctor money on top of what he or she already paid for in insurance coverage.  Many doctors do not want to pay.    As a result of the cost, many doctors choose to rely on the insurance appointed attorney without seeking the help of personal counsel, ignoring the potential conflict of interest.  This could lead to disastrous results, in which the doctor gets advice that is good for the carrier, but not necessarily good for the doctor.

At Lubell Rosen, we believe that doctors deserve access to qualified and experienced personal counsel at an affordable cost.

For a doctor who has already invested so much in his or her medical career, there is simply too much at stake to forego retaining qualified, experienced and affordable personal counsel.