Reviewed by Paul E. Walker

A physician has malpractice insurance to protect personal assets from a verdict that could award damages far in excess of the doctor’s coverage limit. In New York, a doctor typically has a total of $2,300,000 worth of primary and excess coverage. Since juries can easily render awards far in excess of that amount of coverage, the doctor has to be very careful in deciding whether to take a case to a verdict. The last thing you need in your life is a $4,000,000 verdict with the plaintiff and his lawyers coming after you for the amount over your insurance coverage.

What Happens Once a Case Settles

So, the easy answer seems to be to give the insurance company permission to settle the case to avoid the nightmare of a huge verdict against you, and you will also avoid having to go to court every day for two weeks while the case is tried. However, you have to truly understand what might happen to you when a case is settled. For instance, all settlements by insurers must be reported to the National Practitioner’s Data Base. So, if you apply to a hospital for privileges or apply to be put on the list of an HMO, the settlement will be seen and taken into consideration during the vetting process. One small settlement in 15 years might not be meaningful, but a very large settlement or multiple settlements might lead to a rejection from the hospital or the HMO.

The Public Physician Profile

Also, all settlements have to be reported to the New York State Physician Profile. This Profile can be viewed by the general public. Please note that while generally speaking there have to be more than two settlements to have New York start to publicly list settlements under a physician’s name, the State has the discretion to list any settlement even if it is the first one for a physician. They can list a settlement if, in their judgment, the case had a “serious” outcome. Therefore, for instance, if there is a settlement under your name for a relatively small amount in a death case, you might very well see this settlement publicly listed under your name.

An OPMC Interview Request

This listing can possibly lead to a request for an interview with you by the Office of Professional Medical Conduct (OPMC). This is a very unpleasant situation, as no physician wants to be explaining the outcome of a malpractice case to an organization which has the power to issue sanctions against the doctor’s medical license.

How a Settlement Reaches OPMC

The reporting chain is automatic. In accordance with Insurance Law § 315, malpractice insurers must file quarterly reports with the superintendent and the Commissioner of Health, detailing claims against their insureds and how each one was resolved. From there, a settlement claim may proceed through several channels:

  • To the National Practitioner Data Bank, which hospitals and HMOs check during credentialing, though the public cannot see it
  • To the Department of Health, through your insurer’s quarterly report
  • To your public Physician Profile, if the listing thresholds are met
  • To OPMC, which may open a file, particularly where payments form a pattern

In our experience, OPMC can look at any settlement, but will generally scrutinize those with several payments landing in a short period, as that pattern may suggest incompetence, substance abuse issues, or something else that can place patients at risk.

You Can Review a Listing Before It Is Published

It’s important to understand that you are not powerless once a settlement has been reported. The Department of Health’s profiling regulations provide you with the opportunity to respond to these claims:

  • The department will send you a copy of the malpractice review before the information is published.
  • You will have 10 days from the date of the letter to submit corrections of factual errors.
  • If you have two or fewer settlements in the past 10 years, you may utilize a panel review process and submit additional clinical information about the case in question.
  • If you fail to meet these deadlines, the information will be published as written.

Questions to Ask Before You Consent

  • How strong is the defense, and what do the experts say about the care at issue?
  • What is the realistic verdict range, and how does it compare to your coverage?
  • Would this payment be your first, or would it add to a pattern?
  • Does the case involve a death or serious outcome, which makes a public listing more likely even for a first settlement?
  • Are you applying for hospital privileges, an HMO panel, or a new position in the near future?
  • Does your policy give you the right to refuse consent, or can the insurer settle without you?

Weighing the Trade-Off

Therefore, think carefully when the question arises as to whether to agree to a settlement of the case against you. On one hand, you do want to be protected against a verdict that could go far in excess of your malpractice insurance coverage. On the other hand, you do not want to be reported to various agencies, as this could truly damage your medical career in the future.

There are many other issues on the subject which would take too much time to discuss, but suffice it to say that you really should get the advice of an experienced attorney so that you have the information to make an informed decision on this type of matter.

Contact an Experienced New York Professional Defense Firm

This informational blog post was brought to you by Paul E. Walker, an experienced New York City OPMC & OPD Lawyer. If you are a healthcare professional navigating legal action, it’s in your best interest to connect with an experienced attorney with Walker Medical Law. Contact us today to learn how we can assist you.