WhiteCoat

Legal Malpractice Insurance in Texas? GASP!

Texas attorneys are up in arms because the Texas Supreme Court is again considering whether or not to require Texas attorneys to disclose their malpractice insurance status to their clients. The measure apparently was previously vetoed by a state Supreme Court task force.

The Texas Bar Blog is soliciting comments from attorneys. So far, there are nearly 100 comments such as …

I think it is a bad idea. All attorneys have clients who are never satisfied even when they have reached a good settlement to their case. Mentioning liability insurance to this sort of client will only encourage malpractice suits for them to see what else they can get.

and

I think it is a bad idea. Clients could simply inquire about it if necessary. Clients come to us for litigious reasons in the first place, to make this disclosure offers them another avenue of recourse – against the attorney. In other words, we would just be planting a seed in their minds. Plus, smaller offices may not have the insurance for financial reasons and to force the disclosure carries a sense of not being a good lawyer.

and

Malpractice insurance breeds claims.

and

Being forced to let the clients know that we have a deep pocket if they want to get some money “without hurting anyone but the insurance company” will also make grievances in support of the malpractice case more prevalent.

and

Let me get this straight. We cannot tell a jury that a defendant has insurance because the assumption is that they will award a run-away verdict, knowing that the insurance company will have to pay the judgment.
Why do lawyers not deserve the same privilege against said disclosure?
Have any of the Supreme Court justices ever paid a malpractice premium for themselves, or was it paid by some firm administrator in their ivory tower?

I could go on cutting and pasting, but I’m getting all choked up. [Sniff]

Of course, if we changed the operative subject in the article from “attorney” to “doctor”, you know they’d all be whistling a different tune about what a good idea it is for patients to have recourse against all the incompetent medical practitioners in Texas.

Hat Tip to Examiner.com

49 Responses to “Legal Malpractice Insurance in Texas? GASP!”

  1. Matt says:

    This is an odd rant, WC. Or do you believe that physicians would all be in favor of posting notices as to their malpractice carriers and coverage? I would expect physicians would rebel against it for many of the same reasons.

    “Of course, if we changed the operative subject in the article from “attorney” to “doctor”, you know they’d all be whistling a different tune about what a good idea it is for patients to have recourse against all the incompetent medical practitioners in Texas.”

    This statement doesn’t make sense in the context of the rest of the post, since the issue is not the actual recourse, it’s the notification of coverage prior to any suit being filed or claim being made. Lawyers aren’t trying to actually limit the ability of the public to get recourse.

    I guess the rant does make sense in that you have been conditioned to be anti-lawyer in all respects, regardless of the intelligence of the position. Even when the professions (indeed, all professions) might have some common goals when it comes to things like this. But that kind of critical thinking doesn’t really go with being the unwitting mouthpiece for the insurance industry, I understand.

  2. Fyrdoc says:

    Matt,

    Almost every state requires medical malpractice to practice. This is well known in the population. Why are the lawyers so afraid of exposing that there exists such a thing a legal malpractice and even insurance for it?

    If you traded the operative subject in the article, no one would have a problem with it. That woud be business as usual for physicians.

    WC – Thanks for the proof that given enough chum in the water, sharks will even feed on themselves!

    • Matt says:

      It’s not about the requirement of having it, it’s the publication of it to each client or patient. Is that required by every state? I have never seen any notice in any doctor’s office I have ever been to. So it’s evidently not a requirement in at least those states.

      Would you object to having to post a notice or otherwise specifically disclose to each patient that you have malpractice insurance? Would you object to lawyers having the same liability caps that physicians get in Texas? If disclosing this information is good for lawyers, it’s good for all professionals. Let’s do it for physicians, architects, and engineers as well. Agreed?

      As far as physicians having no problem with this, I find that hard to believe. Particularly given that physicians fight tooth and nail anything that they think exposes them to more liability. I would expect comments on the same issue were it to be proposed by your state medical association. Wouldn’t you?

    • throckmorton says:

      Matt: Most states require that you carry malpractice insurance of at least a minimum of a certain amount. This is public information. In some states like Florida, where you can opt out, you must post that you do not have malpractice insurance in a position immediately seen upon entering the practice.

      • Matt says:

        Like I said, I did not know, and it doesn’t sound like there is any state by state comparison. My experience is that I’ve never known whether the physicians do or not. I assumed they did, but in the 4 states I’ve received treatment, it’s never come up.

        The issue as to up front disclosure is what we are talking about, though, although it doesn’t appear to what extent the disclosure was contemplated. I expect physicians would object to having to disclose that, and the comments would be similar to what WC cited. I’m sure we will see if this trend catches on.

        Of course, single payer makes it moot from your perspective.

        Personally, I don’t care either way. I have it regardless.

  3. SeaSpray says:

    “I could go on cutting and pasting, but I’m getting all choked up. [Sniff]” LOL WC!!! :)

    This is the kind of article you need to get all comfy with your favorite beverage and just savor those heartwarming words..over and over again. ;)

    I think you all should post this in the physician’s lounge just to share the the joy with your colleagues that you experienced in reading those comments. :)

  4. Max Kennerly says:

    All licensed professionals should be required to have some state-mandated minimum coverage.

    If the state is going to let licensed professionals practice without insurance (which it shouldn’t), then, yes, the state should require uninsured professionals — whether lawyers, doctors, architects, or whatever — to disclose the lack of insurance.

    Ensuring some degree of compensation when we make mistakes is the duty of every professional. If you don’t like it, do consulting or research or whatever. Don’t be unprofessional.

  5. MikeMD says:

    This is fantastic. One even talks about caps to legal liability! Apparently caps are only terrible for people who are allegedly hurt by physicians.

    “Another bad idea–even for those of us that have insurance. What makes us so much more responsible than every other profession, including physicians? The only real beneficiaries would appear to be the liability carriers. How about a cap on liability in legal mal practice cases?”

    And another eerily medical argument that’s consistently shot down by the attorneys, but only in the medical context. Sometimes bad outcomes are unavoidable.

    “We argue our client’s perspective in a manner that hopefully results in a positive outcome for them. Sometimes this doesn’t happen. Not because of what we do or don’t do, but because of the facts of the case. Some of our clients may not be happy with a jury verdict, an arbitrators decision, or if a conflict results, if an attorney has to withdraw.”

  6. #1 Dinosaur says:

    I blogged about this before when this happened in California. The more things change

  7. igloodoc says:

    Loved the lawyer blog. Why, disclosing malpractice info may lead to lawyers actually screening patients for litigious behavior. Lawyers may even start worrying about what clients and their malpractice lawyers do, and start practicing *gasp* defensive law.
    But of course, that doesn’t exist. Right?

    BTW shout out to nurse K… where you been hiding? Hope you are OK

    • Matt says:

      How do you screen your clients, who are litigants, for litigious behavior? Do you say “I won’t represent anyone who might do exactly what you came in here and offered to pay me to help you do?”

      Doesn’t make much sense.

      • throckmorton says:

        Matt:

        We are not allowed to screen our patients. This is EMTALA. If they come to the ER and you are on call, you get them. You can not refuse their case.

        WhiteCoat had a great suggestion on EMTALA for attorneys in a prior post.

      • Matt says:

        Give attorneys the average pay of emergency physicians and you’ll probably have quite a few sign up. Public defenders take all comers for around $50K a year or less.

        My point, though, was that attorneys screening clients for being litigious doesn’t make much sense. Unless you’re a transactional lawyer that is.

      • igloodoc says:

        The whining of the lawyers on the blog about exposing themselves to the threat of litigation because they have malpractice insurance is deliciously ironic.

        So, our old lawyer friend chooses to drag out the “lawyers are victims because we are poor” defense. Makes me misty – why I might almost think about putting the effort into shedding a tear.

        Simple answer … if you want to get rich, my lawyer friend, run for office.

      • Matt says:

        I am wondering if you can read. I said nothing about victimization. Throck mentioned he thought making attorneys subject to EMTALA was a great idea. I simply stated that for the same pay quite a few would probably sign up for a legal version of it and that the limited version we have has attorneys who do it for significantly less.

        Of course, as much time as physicians spend worrying about lawyers vs actually important things like the Baucus bill may result on emergency care being defined as a right just as much as the right to counsel, if not more. Then you may well be paid like public defenders!

        Not sure how your comment makes any sense in response.

      • throckmorton says:

        Matt:

        Emergency care is a right already. It is mandated by EMTALA. At least public defenders get paid. We must take care of the patients in the ER regardless of their ability to pay. In many ways we pay to take care of them because it takes us away from the patients who do pay.

      • Matt says:

        Throck EMTALA is not a right per se. It is a contractual obligation hospitals take on in exchange for receiving federal money. They do not have to do it. The ED physician, who is typically on salary, gets paid regardless by the party it contracts with, the hospital. Given that the average physician salary overall is about 3x that of a public defender someone is evidently paying your bills.

        Now the reality is that it’d be awfully hard for a hospital to survive without fed money. But that’s a bargain struck long ago by the medical industry, including physicians.

      • throckmorton says:

        Matt:

        Physicians practice at the hospital, just as attorneys practice at the Court. There is no contracted agreement. We are not paid by the hospital. We are paid by collections on the bills that are sent to the patients that we see. If you use the hospital, you must take call. It is as simple as that. Your structure is this. If you want to hit a target income, you hope that you can see more patients who are insured well and work longer. If you want to make less, see the less insured and hope you dont get creamed by the ED. I have had to cancel whole clinics and whole days of the OR to handle emergency cases that I picked up on call. My overhead stays the same but I generate no revenue when I cancel the office or the OR. Now consider that many of us are on call every other or every third night.

      • Matt says:

        So what is your net income goal?

      • BrokenHandLawyer says:

        Riiiiight. Which is why, when I was referred to a hand surgeon when I broke my hand during a lapse in coverage (no easy feat by itself), and I walked in, the receptionist informed the good doctor that his “no-insurance patient” was here.

        The good doctor promptly told me that my hand was fine, despite several GPs previously telling me otherwise.

    • throckmorton says:

      Matt: I am not an employee of the hospital but I am affected by EMTALA. In order for a hospital to stay liscenced they must take and be certified to take Medicare and medicaid. As a result, they are all regulated by EMTALA. This is why you can go to any hospital ED and be treated. Most ED docs are not paid by the hospital but bill for their services. When a sick patient hits the ED, they are not admitted to the hospital, taken to the OR or ICU by the ED docs, rather it is surgeons, internists, cardiologists, etc that have to drop their private patients and run in to take care of this patient regardless.

      This is like an attorney running out of court to rush to take care of a new emergency client they could not refuse. For your public defender, it would mean that they have to be a public defender for free and do it whenever they are called and must support their own salary and pay a higher malpractice insurance just for doing it. So, to have the public defenders make more money, they would have to make it on their own.

      There are some hospitals that are paying for call. These are in areas where they just cant recruit physicians to meet their EMTALA mandated demands. It is crucial to note it is the hospital that is paying a stipend to physicians and not the state.

      • Matt says:

        Thanks for the info. Question for you-how are you paid? And by that I mean you must have a target income so how do you structure your agreement to factor in those who don’t pay?

        I assume you’re an independent contractor-I would like to understand how your contract works.

      • UmmReally says:

        I’m not Throckmorton, but I have a good idea how he gets paid. Medicare sets rates as voted on in a private meeting among a very small number of doctors representing, in theory, a cross-section of specialties. Almost all insurers then base their rates on some percentage of medicare rates(from as low as 70% or less to as much as 200% or more). Your choice is to take those rates or not. If you don’t you can charge cash on the barrel. For a surgeon cash on the barrel is impossible for the overwhelming majority of his potential patients.
        If a doctor sees a large percentage of non-paying or very poorly paying patients the onyl way to make up the financial deficit is volume. You cannot charge more to the others. And since to see patients in a hospital you are generally required to take call and therefore you are obligated to seeing the nonpaying patients.

      • brett says:

        Matt has been told a million times how doctors get paid but he still asserts that there they get some type of magic salary and therefore they must be paid for EMTALA. Forget about explaining it to him because he either can’t understand it or does not want to believe it for some reason. In California, which is a fairly large state last time I looked it is not legal for hospitals to emply physicians.

        Doctors in 1966 were leary of medicare. It was the camel sniffing under the tent. Most practicing now have nothing to do with the set up or intrusion of government. Just like now there is no power and decisions are being made by clueless positicians that are want to get reelected or hold fantasy beliefs.

        It would be a really ugly scene if we did what Matt asserts and just do not practice medicine where government is involved. Every single doctor should not show up for a day. Wow, now that would be a news story.

      • Matt says:

        Actually I was asking a very specific business question about how he makes economic decisions in his practice. Try reading closer next time.

      • Amy says:

        Yup, brett – you are right. I’ve definitely seen it explained to Matt that all physicians are not, in fact, paid a salary by the hospital.

        FYI, Matt, there are any number of fee arrangements. There’s working as an independent contractor, being an employee of a group the is separate from the hospital, or being a hospital employee. If you are an employee of a contracted group you may have an independent contractor arrangement, a salaried arrangement, or other arrangements with which I am not as familiar (fee for service, modified fee for service, RVU based, and salaried base with productivity incentives come to mind).

      • brett says:

        Matt: I read you just fine. I was not refering to your question to Throck but your previous false assertions you have about EMTALA and about ER and other physicians being ‘salaried’. I guess it is too hard for you to understand.

  8. Aaron says:

    It seems that in my jurisdiction if legal malpractice was pursued in a manner similarly to medical malpractice most cases that go to trial would produce one case of legal malpractice against the losing attorney.

    • Matt says:

      Doubtful, considering that the vast majority of medical malpractice does not result in a lawsuit. And, the overwhelming majority of bad outcomes do not result in a lawsuit.

      • throckmorton says:

        Considering the difficulties with our present system it would appear that even fewer instances of legal malpractice result in lawsuits.

      • Matt says:

        Not sure what you’re talking about.

      • throckmorton says:

        Matt:

        You wrote “considering that the vast majority of medical malpractice does not result in a lawsuit. And, the overwhelming majority of bad outcomes do not result in a lawsuit.” I would argue that this is even more true for instances of legal malpractice and bad legal outcomes.

      • Matt says:

        Based on? Btw, did you ever confirm that obama’s class action consisted of more than three class members?

      • elmo says:

        Based on the same evidence from the “conclusion” you made in your original statement matt. Come on quit playing wordgames.

      • Matt says:

        There are multiple studies of malpractice and medical errors. I know of none involving legal claims. Do you? Or do you not find information useful in reaching conclusions?

  9. [...] This post was mentioned on Twitter by overlawyered and Sarah Glenn, Tye Arnett. Tye Arnett said: Lawyers hate legal malpractice insurance disclosure…sure like putting it out there for physicians http://bit.ly/1H8Rex #lawyersrunmedicine [...]

  10. Ausduck says:

    A transparent legal profession….

    wait, what???

    Of course, I can’t comment on what happens in other countries. I don’t think there is an onus on the medical or legal professions over here in Aus to disclose their insurance status to the public.

    We have such convoluted indemnity anyway given that we have state funded healthcare as well as private healthcare insurance (don’t get me started!) One of the biggest questions the that has to be worked out when a claim comes in is which insurance? The doc’s own or the state’s?
    Depend’s on contracts, the patient’s status (private or public) – the list goes on.

    But you go, WC, anything that upsets the lawyers is a good thing, in my book :)

  11. paul says:

    awesome post, wc.

  12. Social comments and analytics for this post…

    This post was mentioned on Twitter by CECSarahG: Dr. WhiteCoat: Legal Malpractice Insurance in Texas? GASP! http://bit.ly/EMZrP

  13. Ed Bob says:

    lol this is hilarious, poor lawyers

  14. elmo says:

    “Doubtful, considering that the vast majority of medical malpractice does not result in a lawsuit. And, the overwhelming majority of bad outcomes do not result in a lawsuit.”

    Please do list studies that show the percentage of “medical malpractice” that result in lawsuits.

  15. Doc99 says:

    C’mon, guys … you expect justice. That just isn’t so in the courtroom. Oliver Wendell Holmes said it best: “This is a court of law, young man, not a court of justice.”

  16. PookieMD says:

    Good gravy White Coat, you’ve done it again! What a side splitter reading this post! Poor little lawyers!!!

  17. Sarah says:

    Here’s a recent gem from their discussion:

    “If lawyers are required to disclose whether they have malpractice insurance the same situation will develop as with doctors–to keep down their malpractice rates they won’t take risky cases. But unlike medicine, there is no “Emergency Room” and no EMTALA (the federal law requiring certain types of emergency medical treatment regardless of ability to pay) for law — people with risky cases will have to just hope they can find a lawyer who is so inexperienced that he doesn’t recognize the potential problems. … Just what someone with a major problem needs!”

  18. This is a very important topic and it is too bad that too many of the previous comments got personal. As insurance brokers specializing in legal malpractice insurance for attorneys we do not have a position one way or another in the debate in Texas, it is important to know that Texas is not alone in considering mandatory disclosure. On August 26, 2009, the Supreme Court of California adopted new Rule of Professional Conduct 3-410, effective January 1, 2010 that requires lawyers without professional liability insurance to provide written disclosure of their lack of coverage to all new clients and returning clients with new engagements at the time of the client’s engagement. It would be interesting to know if there is anything more than anecdotal evidence that such disclosure rules either: (1) cost any attorney’s business, or (2) led to more or larger legal malpractice insurance claims.

    As for studies related to legal malpractice insurance claims, I am particularly fond of the Missouri Department of Insurance, Financial Institutions & Professional Registration 2008 Legal Malpractice Insurance Report. This excellent report provides a quick overview of premium and loss data compiled from ten (10) insurance carriers writing legal malpractice insurance in Missouri over ten (10) years. The report contains excellent, easy to read, charts, graphs and tables highlighting the closed claim information collected. Though not necessarily indicative of the results in the entire United States or for any other state, we believe that the report does provides valuable comparative data for attorneys, insurance carriers and brokers to ponder when considering new and renewal insurance terms. It may even be helpful in this debate as well. The report can be found at (http://insurance.mo.gov/Contribute%20Documents/2008LegalMalpracticeReport.pdf).

    Once again, we have no specific opinion in the Texas debate, but encourage all parties to carefully review a wide range of issues as this issue continues to be evaluated.

  19. Adan Atriham says:

    I love it… Great post. Let’s share with the lawyers some of our feelings.

    Doctors should be doctors and lawyers should be…. uhhhhh…. people.

    Cheers

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