Conflicting Interests in Malpractice Negotiation in Neurosurgery: A United States Problem

Abstract

This article presents the concepts of the duty to settle doctrine and its application to medical malpractice litigation. Discussed here are the conflicting objectives of the physician, the physician's interaction with the insurance company, and the interaction and potential liability the attorney faces when confronting these issues. Medical malpractice litigation carries with it conflicting goals for the attorney who represents the physician and who interacts with the insurance company as they try to resolve a conflict with a plaintiff. The duty to settle doctrine requires the insurance carrier to solve the claim in the least expensive and most expedient manner possible. The duty to settle may interfere with the desire of the physician to pursue a different course of action when he or she believes other interests are more important than the monetary settlement desired by the plaintiff and by the insurance company. The insurance company is intent on minimizing the expense and the financial exposure available to the plaintiff. The physician tries to minimize self-expense and financial exposure, but is also concerned with other issues including the absence of negligence in his or her actions, the effect a settlement will have on premiums, and the effect the settlement may have on his or her medical reputation in the community. A physician often prefers to litigate a case he or she believes was handled appropriately, whereas the insurance company prefers to settle the case in the least expensive way. The attorney has to negotiate between these parties with similar needs but different objectives.