Choosing Defense Counsel

By Mary Kasher, MSN, JD
OMIC Claims Manager

[Digest, Winter 2001]

You have just been sued for malpractice. Who would you want as your defense attorney through the legal quagmire that is sure to follow? Would you look for the attorney with the best win record? The one who practices at the biggest and best known law firm in town? The one with the most courtroom experience? Charisma and eloquence?

All of these factors should be taken into consideration when looking for the most qualified attorney for your case. In addition, OMIC has a few more requirements before an attorney can become part of our defense panel and ultimately your attorney. As in many professions, the legal profession is divided into specialty areas, each of which defines a specific scope of expertise; for example, there’s insurance defense, workers’ compensation, corporations, mergers and acquisitions, real estate, and of course, medical malpractice. It is important that an attorney be selected whose primary focus and experience is in medical malpractice.

Prior Ophthalmology Experience
OMIC chooses its defense counsel very carefully. First, we look or defense counsel with strong medical malpractice litigation references from the local legal and insurance defense community. All OMIC cases are assigned to a senior partner with at least 10 years of medical malpractice trial experience. The partner directly assigned to the case must have ophthalmology case experience and, in most instances, have taken ophthalmology cases to trial.

The first phase of any medical malpractice case is to determine the insured’s potential liability and what part he or she played in the overall medical care picture of the plaintiff-patient. The ability of defense counsel to understand ophthalmology at this fact-finding stage is crucial because it is at this stage that the ultimate direction of the case is determined. For example, if counsel already understands what cataract surgery entails and knows its potential complications, it will be much easier to spot the issues and categorize them according to impact. This is why OMIC makes every effort to locate attorneys with ophthalmology experience an then continues to educate and groom them in the language and application of ophthalmology. Each time an OMIC attorney handles an OMIC case, his or her knowledge base grows and the attorney becomes more effective in managing OMIC cases.

OMIC has developed Ophthalmology Learning Modules for attorneys in several subspecialties, including cataracts, cornea, glaucoma, endophthalmitis, oculoplastics, vitreoretinal, ROP, and ophthalmic anesthesia. These modules and literature searches through the archives of the American Academy of Ophthalmology and other resources provide attorneys with the necessary background information to understand and focus on the primary clinical issues presented in each case. The insured ophthalmologist also plays a large role in educating defense counsel in the specific medicine involved in his or her case and continues to assist and analyze the issues as the case progresses.

In the initial stage of a claim, the defense counsel’s reputation in the community is extremely important, particularly when OMIC is trying to resolve the case with the plaintiff’s attorney and avoid going to trial. It has been OMIC’s experience that plaintiff attorneys are more willing to listen to and negotiate with the defense team when it is presented by a law firm known for its ability to win at trial. It is also good strategy for the OMIC Claims staff to team up with defense counsel to present a strong united front when trying to dissuade the plaintiff from pursuing a nonmeritorious claim.

Strong Courtroom Presence
Approximately 95% of malpractice cases never go to trial; however, should your case get that far, you will need an experienced and skilled attorney to represent you. It is important for a trial attorney to be able to relate to and develop a rapport with both the judge and jury. The attorney must be sufficiently conversant with the clinical facts of the case to present them clearly and succinctly to twelve lay individuals who may not have any medical background. Often, the attorney must walk a tightrope when explaining complex medical concepts to jurors to avoid talking over their heads without being condescending. It takes years of practice to develop this skill and to be able to successfully maneuver a case through a trial. Unexpected delays or continuances, surprise witnesses, sympathetic plaintiffs, and ever-menacing plaintiff attorneys can sabotage the most carefully prepared case at any moment. A skilled leader is absolutely essential at the helm.

Defending a medical malpractice case requires a team effort and the combined skills and experience of defense counsel, the OMIC Claims Committee and staff, and the insured ophthalmologist to develop and carry out a winning strategy.

Anatomy of a Claim

By Marilys Fernandez, RN, Esq., Digest, Winter, 1991

Medical malpractice claims are expensive, time consuming and emotionally trying for the physician involved. They often call into question not only the physician’s medical skill but his or her integrity as well. It is at this point when the physician may be feeling angry, confused and most in need of support that the benefits of a physician-sponsored company such as OMIC are most apparent.

Streamlining the Claims Process

The claims management system of the Ophthalmic Mutual Insurance Company (OMIC) typically cuts through the red tape and streamlines what could otherwise be a frustrating and stressful adversarial process. The result is a more responsive, personalized system designed not just to provide competent legal defense, but to reduce the anxiety and alienation that accompany a malpractice action. Realizing that open communication with the insured is a key element in successfully managing a case, the claims staff strives to keep the policyholder involved and informed frequently throughout the entire claims process.

The claims management philosophy is consistent with the origin and purpose of OMIC’s creation – to provide long-term insurance stability and personal attention to insured members of the Academy in an unstable medical-legal environment. OMIC is the only professional liability insurer exclusively for ophthalmologists and the only one sponsored by the American Academy of Ophthalmology for its members. OMIC’s Board of Directors are all practicing ophthalmologists and members of the Academy.

Reporting a Claim

The action taken when a physician first learns of an untoward medical event can be a critical factor in avoiding, reducing exposure or successfully defending a claim. An OMIC insured should immediately report a claim or potential claim by calling a toll-free OMIC number: 1-800-562-6642. The ophthalmologist will be asked to give a brief description of the incident to the claims staff who will then explain the claims process and provide further instructions on how to proceed.

Once insurance coverage is confirmed and a formal claims file is created, the physician is typically next asked to forward a copy of the patient’s medical records and any other information regarding care and treatment of the patient. Instructions will be given at that time with respect to patient confidentiality and the appropriate release of records. The claims manager may conduct a detailed interview over the telephone or, in some instances, assign the case to a local adjuster to set up a personal meeting with the insured.

It may be necessary for the claims manager to communicate directly with the claimant or claimant’s attorney to request additional information regarding the nature of the injury and damages allegedly sustained by the claimant. This may include supplementary medical records, x-rays or reports from other physicians who subsequently treated the patient.

Physician Reviewers

After the initial claims investigation, an ophthalmologist from the OMIC Claims Committee reviews and evaluates all the records. This reviewer attempts to provide an objective review of the strengths and weaknesses of the medical care rendered. OMIC reviewers, who like all OMIC insureds are members of the American Academy of Ophthalmology, represent various ophthalmic subspecialties and are assigned to cases that closely match their own expertise.

To Settle or Not to Settle

Once the investigation is completed, OMIC evaluates the claim, confers with the insured and makes a preliminary determination on how to proceed. If in the Company’s assessment of liability, the case appears defensible, the claim will be denied. If, on the other hand, it is believed that the insured is likely to be found liable, settling the case out of court may be recommended. However, consent from the insured is required before any claim is settled, pursuant to the terms of the OMIC insurance policy.

OMIC’s philosophy is to vigorously defend cases in which the insured has rendered appropriate care. Nuisance or so-called economic settlements only encourage frivolous litigation. On the other hand, if it is in the best interest of the insured to settle and the insured agrees, a prompt settlement will be attempted. However, since facts develop as a case proceeds, settlement of a case can occur anytime during the litigation or pre-litigation process: during the discovery phase, prior to trial, during trial or after trial.

Selection of Defense Counsel

Oftentimes, the first notice of a claim is the filing of a lawsuit by the plaintiff and the service of a Summons and Complaint on the physician. When this happens, the Company will retain counsel to render a defense on behalf of the OMIC insured. Counsel is chosen from a pre-approved list of attorneys with particular expertise in defending medical malpractice ophthalmology cases. This special panel of defense attorneys is likewise committed to aggressively defending all malpractice actions which the company believes could be resolved in the physician’s favor.

OMIC is also committed to the principle that the defense counsel’s client is the insured ophthalmologist and not the insurance company. Accordingly, defense counsel is expected to act responsibly and in the best interest of the insured physician. This includes keeping the insured involved in all aspects of the litigation, significant case developments and expert selection. The appointed attorney conducts all meaningful discovery, confers with the Company and the insured on defense strategy, and ultimately defends the case for those claims which proceed to litigation.

The Company takes great care when advising a physician about the ramifications of any settlement. Due to the reporting requirements of the National Practitioner Data Bank (NPDB), the claims manager reviews any report on claims payment with the physician before filing it with the NPDB.

After Claims Closure

The claims department’s job is not finished once a claim or lawsuit is brought to a final resolution. Data gathered from each claim is codified so information may be compiled on claim frequency and practice errors as they apply to ophthalmologists. This information is used by OMIC in its loss prevention efforts and risk management services.

The effective resolution of a claim can only be achieved by frequent communication between the policyholder, the claims manager and the attorney. In the spirit of this philosophy, OMIC will continually work to evaluate and improve the claims management process so that it remains responsive to the evolving needs of OMIC-insured ophthalmologists and members of the Academy.

The Cooperation Clause

By Kimberly Wittchow, JD

OMIC Staff Attorney

Digest, Winter 2005

In order to properly investigate and defend a medical malpractice claim, the professional liability company and the insured must cooperate. The participation of the insured, who is the subject of the lawsuit and holds first-hand information about the incident, is crucial to his or her own defense. Without such cooperation and assistance, the insurer is severely handicapped and may even be precluded from advancing any defense.

While the litigation process nearly always progresses successfully, there are times when some insureds thwart the resolution of their claims by failing to cooperate. Insureds may believe they have done nothing wrong and therefore avoid any work to counter the plaintiffs’ allegations. Or, afraid of the consequences, they may keep vital information away from their defense attorney until late into the case development. They might not understand the importance of their presence at litigation proceedings (such as depositions, mediations, or arbitrations) and worry about taking time away from their practice. Some attempt to handle matters “on their own” by discussing the case with plaintiffs’ attorneys against the advice of defense counsel or making payments without their insurers’ consent. Others may not want to tarnish their record and thus refuse to participate in settlement talks even when there is strong evidence that the standard of care was breached.

Investigation and Defense

That is why many professional liability policies contain Cooperation Clauses that require insureds to assist in the defense of claims made against them. OMIC’s policy has such a clause and, broken down, it requires the insured’s assistance on three levels. First and foremost, the policy requires that insureds assist in resolving the claim brought by the patient by helping with the insurer’s investigation and defense of the claim at trial or through settlement, as appropriate. This includes producing medical records, spending time with defense counsel, coordinating the appearance of staff at depositions or at trial, and attending court proceedings.

Coordination of Payment

The second situation is related to the coordination of payment among various legally responsible parties or insurers. The insured is required to cooperate in enforcing a right of contribution (where the loss will be shared) or indemnity (where another party is responsible for the entire loss) against someone else liable for the claim. For example, an insured may give notice under his or her OMIC professional liability policy for an office premises claim that might also be covered under the insured’s business owners or general liability policy. In this case, OMIC would ask the insured to help coordinate the defense and resolution of this claim with the other insurer.

Unauthorized Payments

Finally, the insured is prohibited from making payments, incurring other expenses, or assuming any obligations except at the insured’s own cost and with OMIC’s permission. OMIC wants to participate in its insured’s defense and work with the insured to come to the best resolution possible for the insured and the injured party. If the insured does not allow OMIC to participate, OMIC cannot be responsible for expenses the insured incurs. One example of this situation is where an insured decides, without the advice of defense counsel, to hire a private detective to track a malingering patient. This can be problematic for the defense because the defendant may be compelled to provide the plaintiff with this information. If nothing was revealed through the investigation, this could undermine the insured’s defense. Another example is when an insured, believing it is in everyone’s best interest, makes an out-of-pocket payment to the patient after a lawsuit has been filed. Again, if the case proceeds, this early payment to the patient may jeopardize its defense.

Even with the notice of required cooperation provided in the policy, some insureds still may not comply. The risk for these insureds is that they may be prevented from recovering under their insurance policies for the particular claim or they may lose their coverage altogether.

Before the situation reaches this level, however, the OMIC Claims staff would work diligently to educate the insured regarding the importance of his or her participation and cooperation in the defense of the claim and discuss what specific action is needed from the insured to bring him or her into compliance.

OMIC understands the issues that may impede a physician’s cooperation with his or her insurer and has several ways to assist its insureds with the upset of a lawsuit. First, OMIC provides access to one-on-one personal counseling (under the direction of the defense counsel in order to preserve attorney-client privilege) to help insureds deal with the emotional impact of litigation. OMIC also offers litigation and deposition handbooks to help insureds better understand the process. Finally, OMIC’s policy pays insureds for reasonable expenses incurred at OMIC’s request in the investigation or defense of a claim and for earnings lost as a result of attendance at court hearings or trials (see policy provisions for details).

The Impact of a Claim on Your OMIC Policy

By Kimberly Wittchow, JD 

OMIC Staff Attorney

Digest, Winter 2006

Stress and worries abound when a patient sues or claims malpractice. One concern of insureds is the effect such action will have on their insurance coverage. Although claims can and sometimes do have an impact on insurability, understanding how a claim is handled at OMIC may provide insureds with some peace of mind.

Each department at OMIC has a different responsibility when a claim arises. Risk Management encourages insureds to be proactive and contact the department when medical incidents or issues occur so the risk manager can help them appropriately respond to the incident and incorporate any necessary changes in their practices or procedures. The Claims Department, in cooperation with the insured, wants to resolve the claim or lawsuit as efficiently and cost effectively as possible. Underwriting, meanwhile, must make certain that OMIC insures good risks. Insureds may therefore get several seemingly conflicting messages from the company depending on the status of their claim. Rest assured, however, that there are checks and balances in OMIC’s operational protocols to balance these priorities. Most importantly, OMIC’s Board of Directors is made up of ophthalmologists who not only approve company processes but also conduct claims and underwriting reviews.

Physician Review Panel

OMIC employs a continuous underwriting process, monitoring the claims activity of all insureds not only in anticipation of policy renewal, but also during the course of the insured’s coverage. Whether an insured’s claim(s) will warrant further review by OMIC’s physician review panel depends upon the insured’s history of claims frequency the number of claims or suits) and severity (indemnity amounts) and on the specific circumstances surrounding the claim(s). This could include indications that an insured is performing experimental procedures outside of the ordinary and customary practice of ophthalmology or has provided substandard care, followed poor informed consent techniques, or failed to cooperate during the claims-handling process. OMIC’s reviewers consider the insured’s entire claims experience, including his or her experience with insurance carriers other than OMIC.

After consideration, the physician review panel may determine one of several outcomes, including any of the following:

• The panel may continue the insured’s coverage without any conditions placed on his or her policy.

• The panel might continue the policy coverage with conditions, such as endorsing the policy to exclude coverage for certain activities or reducing the policy limits.

• The panel could also conclude that the insured’s risk profile falls outside of OMIC’s conservative underwriting standards, and that OMIC, therefore, is no longer in a position to cover the insured beyond the expiration of the insured’s policy.

• Finally, the panel, in rare circumstances, might determine that the insured’s actions warrant mid-term cancellation if the reasons for the cancellation fall within the policy provisions. These include fraud relating to a claim made under the policy and a substantial increase in “hazard insured against,” such as claims frequency or severity or unacceptable practice patterns.

Insureds are provided the opportunity to appeal coverage and termination decisions to the full Underwriting Committee. OMIC would not generally apply a policy surcharge (higher premium) because of claims experience.

Reporting a Claim or Medical Incident

The policy requires that an insured report to the Claims Department any claim or medical incident that occurs during the policy period which may reasonably be expected to result in a claim. The reporting of such an incident triggers coverage with OMIC. Even if the insured doesn’t obtain an extended reporting period endorsement (tail coverage) when he or she leaves OMIC, OMIC will continue to insure him or her for all covered claims and incidents reported while the policy was in force. An incident that does not develop into a claim will have no effect on the insured’s premium and will not be included in claims history reports provided to hospitals or other third parties. Claims or incidents reported to OMIC’s Risk Management Department are kept confidential: they are not shared with the Underwriting or Claims Departments without an insured’s permission and are not considered reported to OMIC for coverage purposes.

Finally, any indemnity payment made by OMIC on behalf of an insured will result in the removal of the insured’s loss-free credit upon renewal and for two policy terms. Then, if no further claims payments are made on behalf of the insured, the insured will begin earning loss free credits again, beginning at 1% and increasing 1% annually to a maximum discount of 5%.

Defending Claims, Selecting Counsel

By Kimberly Wittchow, JD  OMIC Staff Attorney

Digest, Spring 2006

Ophthalmologists inquiring about professional liability insurance often ask how OMIC selects defense counsel when a claim or lawsuit arises. They want to know which attorneys OMIC uses in their city, how OMIC chooses the attorneys it appoints, and if insureds can select their own counsel.

Selection of counsel is not specifically addressed in OMIC’s insurance policy. The policy does explain, however, that OMIC has the right and duty to defend each covered claim brought against the insured. In order to protect insureds against even frivolous claims, the policy requires that OMIC defend claims “even if wholly without merit.” The reciprocal duty of the insured is to immediately report the claim or any circumstances that might give rise to a claim. Without timely notice, OMIC may not be able to adequately exercise its right and fulfill its duty to defend the insured. OMIC must be involved from the beginning of the claim in order to actively participate in the insured’s defense. In the experience of OMIC’s Board and staff, if OMIC does not have control of the defense process from the earliest stages of litigation, its mission of effectively defending ophthalmologists is frustrated, which ultimately works to the detriment of the insured and the company as a whole.

Expert Defense of Ophthalmologists

Implicit within OMIC’s right and duty to defend each covered claim is the right to select and appoint defense counsel. Currently, OMIC has approximately 190 attorneys and law firms on its nationwide list of active counsel. These are the most qualified and consistently successful medical malpractice defense attorneys in the country. Most have worked on several OMIC cases and many are considered “subspecialists” in the defense of ophthalmologists. Given this large base of competent attorneys, assigning defense counsel has been a relatively smooth process in all of the claims OMIC has handled since its inception.

For their part, most OMIC insureds handle the stress of emotionally charged medical malpractice litigation very well and do not allow their anxiety to spill over and adversely impact the selection of counsel and defense of their claim. Mutual trust and a professional relationship between the insured ophthalmologist and his or her attorney are fundamental to a successful defense. OMIC carefully monitors this relationship throughout the course of litigation and surveys every insured after a claim is closed to get feedback about the insured’s experience with counsel.

On rare occasions, the fit between an insured and an attorney is not right. When this occurs, insureds are encouraged to make OMIC aware of any issues they are having with their counsel. Oftentimes, these issues are a natural consequence of the stress of litigation and frequently resolve themselves without OMIC intervening. However, in a few circumstances, OMIC has felt that an insured’s defense would be better served by a change of counsel and has appointed a different attorney.

The Need for Separate Counsel

There are some occasions during litigation when OMIC may have the duty to advise an insured to retain his or her own separate counsel. This happens when some of the allegations in the lawsuit are not covered by the OMIC policy or when the policy pays defense costs but not indemnity for certain allegations. Sometimes OMIC must advise the insured to retain separate counsel if the claim is likely to result in a judgment in excess of the insured’s policy limit or if the judgment may include non-covered sums, such as punitive or other exemplary damages. In many of these situations, the uninsured allegations are dismissed before there is a need to retain separate counsel. Unfortunately in other cases, the allegations remain and the insured must bear the cost of any separate legal defense.

In a handful of cases, OMIC has learned that the insured has engaged his or her own private counsel prior to reporting the claim to OMIC or without OMIC’s approval. Insureds have even tried to settle cases themselves without informing the company of the claim. In these situations, if the insured engages counsel directly without OMIC’s approval, the defense costs accrued will not be covered by OMIC. In addition, any indemnity payments made by the insured without OMIC’s approval also will not be covered by the company.

For more information on this subject, please see OMIC’s Litigation Handbook for the Ophthalmologist or the following articles, which can be found on the OMIC web site at www.omic.com:

• “Choosing Defense Counsel,” by Mary Kasher, MSN, JD, OMIC Digest, Winter 2001.

• “How to Survive a Malpractice Suit,” by Paul Weber, JD, Review of Ophthalmology, July 1997.

• “Anatomy of a Claim,” by Marilys Fernandez, RN, JD, OMIC Digest, Winter 1991.