The Horton Group recently had a physician client named in a wrongful death claim. This physician was insured with a national carrier, carried a $1M/$3M policy and had never been sued in their 40+ year medical career. A year prior to the claim, this physician retired, qualified for a retirement tail policy and received it from this financially strong carrier. In summary, they felt very secure headed into retirement.
The wrongful death claim in question ended up going to trial in Cook County. Before that trial began, the plaintiff’s attorney approached defense counsel with a proposal to settle the claim for policy limits. The physician strongly wanted to settle, as they were very familiar with wrongful death settlement amounts in Cook County. However, the carrier wanted to fight the claim – clearly feeling that the case was very defensible – and would not settle. The case went to trial as scheduled.
A reminder for everyone that the “consent-to-settle” provision in most professional liability policies prevents the carrier from settling without the physician’s permission, but it does NOT give the physician the right to compel the carrier to settle against their wishes.
Unfortunately, the Cook County jury in this case came back with a $6M judgment against the physician. The carrier cut a check for the $1M policy limit and stepped away.
The physician is now in the appellate process. However, their assets are frozen, and it will be a long road back to trial in Cook County. The physician is also on their own to finance the appeal, as the carrier has already paid policy limits.
Granted, this is an outlier case. During the last 30+ years, Horton has represented more than 2,500 physicians across the country – with multiple carriers and in almost all specialties – and this is only the second excess limits case we have seen taken against a physician.
Are there any lessons to be learned here?
- Is a $1M policy enough in Cook County? What is enough?
- Are estate planning and asset risk management effective tools?
- Was this the correct defense posture to take in Cook County?
- Is the Cook County malpractice system a lottery?
- Should there be two-way hammer clauses in physician malpractice policies?
Mike Madey
Mike came to The Horton Group in 1994 and has built some of the organization’s strongest client relationships. In 2008, when The Horton Group combined its operations with Medical Arts Insurance (now Healthcare Practice) out of Lisle, Illinois, Mike knew his focus on medical malpractice insurance would be a great fit.
Material posted on this website is for informational purposes only and does not constitute a legal opinion or medical advice. Contact your legal representative or medical professional for information specific to your legal or medical needs.
