What Happens Now?

The claims management process is generally a multi-year and often complicated process. What follows is a general outline of the processes involved and some of the important decision points for physicians being sued.

Initial Report of a Claim: On receipt of a formal Intent to Commence Action or subpoena for records an insured physician must report the claim to the UMIA claim department.

Assignment of the Claim: Depending on the physician’s specialty, location of practice, and the nature of the claim, the claim will be assigned to one of the eight UMIA claim investigators.

Physician Interview and Review of Records: At the earliest possible convenience for the physician, the assigned claim investigator will make arrangements to interview the physician about the facts of the patient care, the nature of the claim and review the medical records. Following this interview, the claim investigator in consultation with the physician will assign a defense lawyer to the claim and set initial reserve amounts.

Pre-litigation or Medical Legal Panel Hearing: Depending on the state in which the claim occurs, a hearing according to state law to determine the merits of the claim is held. This hearing is non-binding but does give an early indication of possible liability. Generally the patient, physician, legal counsel and panel members attend this hearing.

Discovery Phase: This is a protracted phase of the claim management which can last from months to years. All records from any institution, care facility or other treating physician are collected by subpoena, if necessary, and carefully reviewed. The records are then sent to trusted experts in the appropriate specialty for an initial opinion on causation and defensibility. Additionally the physician may be asked written questions about his care by the plaintiff’s counsel (interrogatories) which are answered by written responses. The defense may also ask interrogatories. Following interrogatories, depositions of the patient, physician, experts, and other significant individuals involved directly or indirectly in the care of the patient may be taken by either the plaintiff or defense counsel. These depositions are attended by both plaintiff and defense counsel, the individuals being deposed and any other legal representation desired (personal lawyer).

Decision Phase: Following key depositions from experts and the patient, a determination is made as to the defensibility of the claim and whether to pursue additional experts, proceed with defense and trial or settlement of the claim. An insured physician, after hearing the risks of each approach and the probabilities of a successful defense, must decide and provide consent to either settle the claim or proceed to trial. Generally a court hearing on the case will determine when the trial will occur and a date is set. All records from any institution, care facility or other treating physician are collected by subpoena, if necessary, and carefully reviewed. The records are then sent to trusted experts in the appropriate specialty for an initial opinion on causation and defensibility.

Settlement Phase: If the claim presents significant exposure and defense issues, the claim may best be handled by a settlement. If an arbitration agreement is in effect, the claim is taken to arbitration. If the claim is not arbitrated, the parties may agree to arbitrate or mediate the claim to the final settlement. Offers for settlement can be made by either side.
Trial Phase: If a claim is defensible, and counsel, the claim investigator, and the physician support taking the claim to trial, then the insured has to consent to the trial proceeding. Many claims will be dropped prior to going to trial if the plaintiff recognizes the weakness of the claim.

Data Reporting and Underwriting: Following a settlement, a report is sent to the National Practitioner Data Bank. If the claim exceeds 100K in settlement, it will be reviewed by the Underwriting Committee. If the insured physician has three or more claims in a 5 year period, or a new claim within 3 years of starting practice, an underwriting review is also performed.

Physician Support Committee: The psychological trauma and physical stress placed on physicians by liability claims is tremendous. Physicians can benefit from discussing the claim process, feelings, and any other issues with like-minded physicians who have been though the process themselves. Having a sympathetic and compassionate ear can be very helpful to physicians struggling with a liability claim. To get physician support, call UMIA at (801)531-0375.