Legal Malpractice

Medical Malpractice Settlements and Legal Malpractice

By (Andrew Lavoott Bluestone)

In Brackman v Medical Liab. Mut. Ins. Co. ; 2010 NY Slip Op 51432(U); Supreme Court, Nassau County , Winslow, J. we see an unusual but doctrinaire situation in which a doctor sues his defense attorneys for settling a case in which he was sued.  The decision lays bare the method by which medical malpractice insurers settle cases.  if the carrier wants to settle and the doctor does not [and there is a consent provision in the policy], then the parties engage in binding arbitration over whether to settle the case with plaintiff or not. 
 

In two different actions, Brackman was sued for medical malpractice.  MLM wanted to settle both; he did not want to settle either.  After an arbitration in one, that case was settled.  An arbitration is scheduled, or has been held, in the other.

"Although the pro se complaint is not a model of clarity, Brackman alleges in relevant part that MLM: (1) breached the policy since it allegedly had no right to compromise either the Jones or the Diresta malpractice claims without his unconditional consent; (2) that the Angel defendants committed legal malpractice and breached their fiduciary duty in the Jones action; and (3) both MLM and the Angel defendants conspired together to bully, coerce and pressure Brackman into accepting the proposed settlement over his objection in the Jones case (Cmplt., ¶¶ 37-38, 45-48). There is no allegation made, to the effect that the Jones arbitration proceeding was corrupt and/or that the decision reached by the medical advisor was made in bad faith. "

"With respect to damages, the plaintiff maintains that by virtue of defendants' wrongful conduct and MLM's cancellation of his malpractice coverage, he was forced to close his New York practice. Moreover, he lost income and sustained emotional distress since he was unemployed for some six months and could not secure "traditional" medical malpractice insurance — although he eventually secured a license and surgery privileges in, inter alia, Florida (Cmplt., ¶¶ 15, 17-18, 32).

"It is settled that malpractice claims grounded upon contingent or hypothetically projected injuries are generally insufficient to establish liability (Bauza v. Livington, supra; Brooks v. Lewin, supra, at 734-735; Pellegrino v. File, 291 AD2d 60, 63). Indeed, while the plaintiff alleges, inter alia, that the Angel defendants' conduct was coercive and that he was damaged thereby, the plaintiff's pleaded factual claim is that, in fact, he never succumbed to any alleged pressure or coercion(Cmplt., ¶¶ 37, 45-48). Rather, he alleges that he refused to consent and that his injuries flowed from MLM's decision to refer the matter to a medical [*8]advisor over his express objection.

Nor does the complaint contain anything other than vague factual allegations supporting the theory that the delays supposedly generated by the Angel defendants were causally related to, or facilitated, MLM's subsequent decision to refer the Jones dispute to a settlement medical advisor (e.g., Cmplt., ¶¶ 15, 34). "

Full post as published by New York Attorney Malpractice Blog on August 24, 2010 (boomark / email).