For over 30 years I was a defense lawyer, doing medical malpractice cases almost exclusively after the first few years. I don’t have a good count for the number of cases I handled or the healthcare providers with whom I interacted. It’s a big number. I tried well over 100 malpractice jury trials, which is huge considering many defense lawyers probably don’t even average two trials per year. One year I rolled my trial boxes into a courtroom 14 times - and I challenge anyone to top that number. Over the years, many carriers retained me to represent their insureds. Some were honest and businesslike. Others almost fit the caricatures of insurance companies seen in lawyers’ television ads. I can tell you all about timekeeping and billing, reporting and all the other nuances of being an “insurance defense lawyer.” Been there, done that.
For more than 20 years, I have handled plaintiff FTCA malpractice cases nationwide, mostly relating to the VA and military healthcare, but through most of that time I kept an active defense practice, as did others in my firm. I shut down my last defense case about three years ago. All the other defense lawyers are gone and now I am exclusively a plaintiffs’ lawyer. Depending on one’s perspective, I have moved to the Light Side or the Dark Side. While I always liked defending doctors, I lean strongly toward the former characterization, but that is a discussion for another time.
Toward the end of my time as a defense lawyer and since moving to the other side entirely, I have become increasingly disturbed by the fact that many defense lawyers don’t seem to appreciate that the healthcare provider is their client – and that his or her interests come before that of the insurance company which hired them and pays their bills. For sure, this has always been a concern in the insurance defense world, but I think the problem is getting worse.
If my supposition is right – and I feel strongly it is – then the reasons for it are multifactorial, as doctors would so aptly put it. I suspect that the biggest factor is economic. The defense business is competitive. Here in Virginia it is very competitive. No one wants to make an insurance carrier unhappy. Repeat case assignments and a volume of business is the key to a profitable defense practice. Margins are not huge. You want to be doing business with that carrier for years to come. That doctor you are defending? That case will get shut down one way or the other – and the likelihood of seeing that character again is low. The conflict or whatever you want to call it is obvious.
There is an understandable temptation to want to keep that carrier happy, even if the consequence of doing so is not entirely in the doctor’s interest. At least when I was a defense lawyer, this sort of tension often arose in the context of settlements. Typically, the healthcare provider had a consent clause, meaning the carrier had to have permission from the doctor to settle a case. More than once, I had the occasion of a carrier wanting to resolve a matter, but I didn’t think it was merited. Doctors have consequences that come with payment reports. One claims representative once pointedly informed that I worked for the carrier and it was my job to “make the doctor consent.” Actually, it was not – and I told them so. My job was to give that doctor my best advice as to what to do. I am sure I could come up with many more circumstances and examples. The tension is real.
One can talk all they like about so-called Tripartite Relationships, but the simple reality is that when a lawyer accepts a case assignment from an insurance company, that doctor is very much a client in every sense contemplated by the Code of Professional Responsibility. He or she is owed the same duties one would owe if the retention was direct and there was no insurance company in the mix. I used to tell doctors that my first duty was to them and, if there was a conflict between their interests and those of the carrier, I was obligated to protect them. I don’t think I was wrong. Whether retained directly or by a corporation, a lawyer has a responsibility to exercise independent judgment and advise that individual accordingly. The fact that the corporation pays your bills does not change that obligation. And if that corporation gets unhappy with you because you do so, that is an unfortunate price for choosing that line of work. That sounds harsh, but it is a tough reality.
My purpose in this commentary is not to hector my defense brethren and sisters as to their ethical lapses. Not at all. They are in an inherently tough situation and I am sympathetic. Still, I think our whole litigation system works better when everyone follows the same rules and plays their roles accordingly. If, as a plaintiffs’ lawyer, I know my opponent will truly represent that doctor as a client, then I can have certain expectations which are reasonably knowable. If he or she is merely an extension of the carrier - a claims representative who can go to court - then what I am dealing with is much more amorphous and I will need to protect my client accordingly.
I would also add that trial lawyers should never forget who we are. We represent clients. Whether defense or plaintiff, we should be striving to get our client the best possible resolution. When both sides do that, the system works as it should, which is to say it works fairly well. When those obligations and understandings get distorted, it does not. Things get confused and that is not to anyone’s benefit.