Understanding malpractice insurance: The claims process

You've been named in a malpractice lawsuit. Your mind starts racing with a dozen questions to which you have no answers. Your stomach feels like it's in your throat.

What do you do first? Who do you turn to for help? This column provides an overview of the claims process, highlighting your obligations and what to expect.

Could this really happen to you? Yes. A dentist in the U.S. is sued once in his or her career, on average, according to an internal analysis (depending on location and scope of practice). That's why it's crucial to educate yourself on your carrier's claims experience, including its trial-win rate and trial-closed-without-pay percentages.

Many dentists and oral surgeons struggle with the shock and emotional impact of being sued. The doctor might replay in his or her mind the care provided, words used, and decisions made, wondering what could have been done differently. Imagine the effect this can have on your day-to-day life. And try balancing a fast-paced career with court dates, depositions, settlement offers/negotiations, and more.

What will happen?

Upon notification of a potential claim, it is imperative that you immediately contact your malpractice insurance carrier; any delay could lead to defense vulnerabilities. Once notified, your carrier will assign the claim to a claims manager who will contact you (likely within 24 hours) to open a claim file.

The claims manager will review the claim against your policy. A timeline of the events that led to the claim will be prepared and pertinent information such as patient medical records, treatment plans, and consent forms will be collected to aid in your defense. Additionally, the claims manager should work with you to determine if the standard of care was breached during treatment.

Standard of care can be breached without negligence (that is, malpractice) occurring. To prove negligence, the plaintiff must establish:

• That you had a legal duty to care for the patient
• That you breached that duty
• That the breach caused the alleged injury
• That actual damages resulted

All four elements must be met to establish malpractice.

If it doesn't appear that negligence can be established by the plaintiff, your claims manager will notify the plaintiff that the claim doesn't have merit and there is no intent to settle. Nevertheless, a lawsuit may still be filed by the plaintiff. If so, the claims manager will hire an attorney to participate in your defense -- preferably one who has thorough clinical knowledge and experience defending healthcare professionals in the jurisdiction in which the suit is being tried.

You will meet with your attorney in person to discuss the merits of the claim and he or she will notify the plaintiff of your intent to fight the claim. The attorney will begin the discovery process and obtain relevant information from all parties involved in the claim. You and your attorney will begin preparing your defense for trial.

The claims process will undoubtedly be a stressful experience for any doctor and his or her office. However, by carefully analyzing a healthcare liability company's level of claims expertise and claims-closed-without-pay and trial-win percentages, you will be able to quantify the strength of your healthcare liability coverage and the team associated with protecting your assets and reputation.

Jennifer Gibson is with the MedPro Group based in Fort Wayne, IN. Visit www.medpro.com/mock-trial-oms to see what it's like to face a malpractice case in court.

The comments and observations expressed herein do not necessarily reflect the opinions of DrBicuspid.com, nor should they be construed as an endorsement or admonishment of any particular idea, vendor, or organization.