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YOU HAVE BEEN sued for alleged medical malpractice. However, your professional liability carrier has appointed and will pay for a defense attorney to represent you. The case progresses, but one day you are advised — by your carrier, defense attor- ney or colleagues — to seek the advice of private counsel at your own expense. The following are scenarios in which this may be worthwhile. CLAIMS FOR PUNITIVE DAMAGES One of the most common reasons your carrier will advise you to seek private counsel is that the plainti made a claim for punitive damages. Because an insur- ance carrier is prohibited by law from paying punitive damages, the carrier must disclaim and advise you to seek private counsel. Awarding punitive damages in medical malpractice is virtually unheard of in New York because the threshold to grant punitive damages is very high. There must be spite or malice, a fraudulent or evil motive, or such a conscious and deliberate disregard of the interests of others that the conduct may be called willful or wanton. BAD FAITH DOCTRINE The classic scenario is one in which a demand is made to settle within the policy limits and the physician wants to settle, but the carrier refuses. For the Bad Faith Doctrine to apply, liability must be clear and the potential recovery must far exceed the insurance coverage. If bad faith is established, the carrier's policy limits no longer apply. If liability is not clear (i.e., the care is defensible) or the award is not likely to exceed policy limits, there is no bad faith on the part of the carrier refusing to settle. Often, this is the case when the physician wants to settle and the carrier does not. In such circumstances, a bad faith letter is unnecessary and will not be eective. UNCOVERED CL AIMS Pl a i nt i f f s w i l l s om e t i m e s pl e a d cla ims that a re not covered by insur- ance. Under New York law, this presents a con f l ict of i nterest to t he ca r r ier- appointed defense attorney whose duty to the insured requires that he defeat liabi lit y on a ny g rounds a nd his dut y to the insurer requires that he defeat liability only upon grounds which would render the insurer liable. Under such circumsta nces, the physicia n ha s the right to a n at torney of his/ her choice t o repla ce appoi nt ed cou n sel at t he ca rrier's expense. This ca n happen when a physicia n is sued a s both the at tending physicia n a nd the medica l director of the facility. The former claims would be covered by the physicia n's professiona l liabi lit y i n s u r a nc e wh i le t he l at t er a re not . The defenda nt could fa ll on his sword a nd admit liabi lit y for t he at tending physicia n cla im covered by insura nce in order to escape persona l liability for the uncovered medica l director cla im. Need less to say, this is not a position the ca rrier wishes to be in, a nd it may provide private counsel with leverage to effect a settlement. INFORMAL MEDIATION The last sig nif ica nt role for private c o u n s e l i s t o i n f o r m a l l y m e d i a t e a s e t t le m e nt . P r i v a t e c ou n s e l c a n enga ge in shut tle diplomacy to ef fect a settlement between the pa r ties. Like a med iator, pr ivate cou nsel is of ten priv y to opposing counsel's positions a nd ca n sometimes f ind the common ground necessary to affect a settlement. Andrew Knoll is a member of CCBLaw, a boutique law firm focused on providing counsel to physicians and other health- care professionals. He can be reached at 315-477-6241 or aknoll@ccblaw.com. ■ THE ROLE OF PRIVATE COUNSEL I N A M E D I C A L M A L P R A C T I C E C A S E BY ANDREW M. KNOLL, MD, JD M D N E W S . C O M /// M D N E W S C EN T R A L N E W YO R K ■ 2 016 1 3 L E G A L E A S E ❰❰❰❰❰ 1 3