SCPIE is renowned for our experience and expertise in handling claims against our insureds. Our claims management team is one of the most experienced in the insurance industry.
By working closely with our insureds, we offer support through a trying and emotionally draining experience. During the management of active claims, we keep our insureds informed and involved, which often helps to lessen anxiety.
What follows is an overview of the various steps in the claims-handling process:
Initial Information
In order for SCPIE’s proactive claims process to be effective, our insureds need to pitch in and do their part. Most delays in the claims-handling process are due to the insured not providing all pertinent information when reporting a claim. Therefore, it’s best to have as much information as possible when calling in a claim.
At SCPIE, an insured’s first contact with the Claims Department will most likely be the Telephone Claims Representative, who will ask questions in order to identify the patient and the circumstances surrounding the claim. The majority of this critical information can be found in the plaintiff’s medical records. Information that is not in the medical records can be valuable as well, such as the outcome of the plaintiff’s medical care handled by another physician or clinic. The more detailed the information, the better the opportunity for SCPIE to prepare an insured’s defense.
Investigation Stage
Once SCPIE has obtained the basic facts of a claim, it mounts an investigation. Depending on its characteristics, a claim is assigned to a SCPIE Claims Investigator, a SCPIE Litigation Supervisor or an independent adjuster. For the purposes of this article, all will be collectively referred to as “adjuster.”
Once the claim is assigned, the adjuster promptly contacts the plaintiff or the plaintiff attorney. The adjuster’s goal at this point is to determine the nature and extent of the allegations against the insured, the status of the plaintiff’s medical condition and the prognosis for recovery. Authorizations for the release of pertinent medical records are requested as well.
The adjuster then contacts the insured to schedule a phone or in-person interview. During this interview, the details of the plaintiff’s medical treatments are discussed and the insured’s questions are answered. The adjuster also provides the insured with an update of the investigation.
Once the medical records are collected and reviewed, first by the adjuster, then by a qualified medical expert in the field, the medical malpractice picture begins to form. A preliminary plan of action is then developed and implemented.
The status of the claim—nonlitigated versus litigated—determines the next step in SCPIE’s proactive claims process.
Nonlitigated claim
If the claim in nonlitigated—that is, a lawsuit has not been filed—an equitable solution between the parties is sought. The preliminary action plan is implemented, and discussions with the plaintiff and the plaintiff attorney ensue.
For instance, assume SCPIE’s medical expert has provided a positive review of the medical care rendered to the plaintiff. Our adjuster relays the medical expert’s opinion directly to the plaintiff or plaintiff attorney. Generally, one of these parties will provide information that disputes this opinion and provides additional facts to support the plaintiff’s position. Oftentimes after a thorough discussion of the facts surrounding the case, plaintiffs choose to drop their claim. If there is no further response from the plaintiff or plaintiff attorney within 60 to 90 days, the claim file is closed.
Litigated claim
Many times the first notice of a claim may actually be a formal document called a Summons and Complaint. This is a lawsuit that is served on the defendant.
If an insured is sued, the same processes that occur in the nonlitigation stage take place in the litigation stage: The claim must be reported by the insured, and an adjuster is assigned to the case. However, unlike the nonlitigated stage, an experienced, highly qualified law firm is selected to handle the case.
In highly complex, severe-damage cases, attorneys who specialize in a given medical discipline are sought for the defense team. If the case was initially handled as nonlitigated, all the information gathered during that investigation is compiled and forwarded to the assigned attorney.
State statutes and local court rules govern the requirements and time constraints imposed on all parties during prosecution of litigated cases. There are benefits and drawbacks to cases handled in litigated versus nonlitigated forums. In the early discovery phase of a lawsuit, the insured’s attorney can utilize the power of a subpoena to obtain the plaintiff’s medical, work-related and school-related records. The defense attorney can also set the depositions of the plaintiff and other parties to the litigation in order to discover the scope of the disputed issues in contention.
During the initial discovery phase, pertinent records will be obtained and reviewed by our insured’s attorney, who will also meet with our insured directly. This defense attorney will complete a comprehensive report for the insured and the insured’s adjuster. Thereafter, the insured, the insured’s attorney and the adjuster will collaborate on developing an initial proactive litigation plan.
The plan sets forth the defense strategy for the case and will include such issues as liability exposure, initial severity of the patient’s condition and identification of medical experts needed to defend the case.
The insured’s participation during this process is essential in providing a more precise medical direction regarding the issues involved. In some cases, insureds may provide medical research and literature regarding complex or less well-known medical procedures. Sometimes, they even set the standard of care in their specialty. All of this information is crucial.
The next step in the litigation stage is the deposition of all parties. A deposition is a legal forum wherein the attorneys for both parties can ask direct questions of the deponents, i.e., the patient (plaintiff), insureds (doctors) and other key witnesses. In most cases, the plaintiff is deposed first, as he or she is the moving party in the litigation bringing the lawsuit.
Following receipt and review of all the records involved in the case, the insured’s attorney will ask the plaintiff what happened to cause him or her to file the lawsuit, and then will continue to elicit detailed information from the plaintiff, who is under oath and speaks under penalty of perjury.
Expert review
Prior to an insured’s deposition, SCPIE will choose one or more medical experts to complete an initial assessment of the medical treatment the insured rendered to the plaintiff. Information about the current medical condition of the plaintiff as well as damages is compiled and communicated to the insured and the adjuster.
The medical expert is selected based on many criteria, including knowledge, education, training and expertise in a given discipline, credibility, esprit de corps, and manner and demeanor under high-stress situations (i.e., disposition in trial). In California, medical experts who opine in trial on the “standard of care” in a given discipline must also have practiced in that discipline for a sufficient time to develop such expertise.
The insured’s deposition is crucial in determining how the case proceeds. In order to make the insured’s deposition as effective as possible, the insured’s attorney will help prepare him or her for this event.
If the insured appears calm, compassionate and knowledgeable—as opposed to arrogant, omnipotent and hot-tempered—the chances of a favorable outcome are far better. An insured’s manner and, more important, demeanor during this deposition is one of the first opportunities for the plaintiff attorney to determine how the insured may respond in trial. In many cases, a weak claim against the insured can be made even weaker by virtue of a positive portrayal at the deposition.
Following the depositions and receipt of the medical expert reviews, the defense strategy is reevaluated. After the defense attorney, the adjuster and the insured discuss the strategy, a final decision is made as to how to proceed with the case.
Deciding whether to defend or settle a lawsuit is a very complex and difficult process. Nearly identical cases may be adjudicated differently due to many factors, e.g., the insured’s deposition performance or the trial environment.
One key element in this complicated process is the opinion of medical experts. Generally, if SCPIE’s medical expert renders a positive opinion regarding the insured’s medical treatment, a defensive posture is assumed and further steps are taken to prepare the case for trial. On the other hand, if the medical expert renders a negative opinion, a settlement posture is generally assumed and efforts are made to seek the best possible resolution of the case.
In California, the insured must provide a written consent to settlement before settlement negotiations can begin. There are many reasons why a given case is considered for settlement; the primary reason is that the medical treatment rendered did not meet the acceptable medical “standard of care” in the community.
Today, the definition of “standard of care” has expanded to include cutting-edge technology, rather than just what is available in the local community. Rapid and significant advance in medicine and technology (e.g., the Internet), coupled with the media’s portrayal of new treatments, seems to have raised the bar as to what is considered the new “standard of care.” Because of what they have seen on television, juries are more receptive to the plaintiff’s arguments regarding the latest advances that may have been available.
Resolution
The resolutions of medical malpractice cases can vary widely, from the plaintiff dropping the claim to the case going all the way through trial to a verdict.
Written claims that are settled for any amount of money are reported to the National Practitioner Data Bank by the insured’s adjuster on behalf of the professional liability insurer. A copy of this report is forwarded to the state licensing board.
Many state licensing boards and/or state insurance departments require separate notification of settlements over a certain threshold limit.
Few cases need to be resolved through trial. Because of the high legal standards set and the expenses involved in proving a case through trial, most cases are not sustainable through jury trial.
Because SCPIE understands how stressful a claim can be, the company’s claims adjuster and defense attorney make sure the insured is kept well-informed on the status of his or her case. With SCPIE’s defense team and the insured working together cooperatively, the chances of a favorable outcome greatly increase.
Through every step in SCPIE’s proactive claims management process, SCPIE’s claims staff work diligently to protect our insured’s reputation and future.
For further information on claims management, please review the following topics:
