An article in the March issue of Healthcare Risk Management,Take the Right Steps to Speed Resolution of Malpractice Litigation,” discussed how steps taken in the early phase of malpractice litigation can significantly affect the length of the case. Rivkin Radler’s David Richman was quoted in the article.

David noted that claims of medical malpractice are determined by the provider’s adherence to a standard of care. “Both the question of the standard and whether the treatment met the standard is often the focus of the dispute and not an issue that is generally determinable at the outset of litigation,” he said. “In determining the fundamental questions — what the standard of care was, whether there was a possible deviation from that standard, and whether the physician’s treatment reflected a proper exercise of judgment — a great deal of investigation and discovery is needed. Chief among that investigation and discovery is the deposition of the physician in order to fully and properly assess the reasoning behind the treatment rendered and whether it can be said the treatment met the standard of care.”

David pointed out that providers may be unwilling to admit a mistake due to the reporting requirements imposed by the National Practitioner Data Bank and similar state requirements. “Because of these reporting requirements, many physicians are reluctant to agree to allow the carrier to settle without making a maximum effort to structure a defense,” he said. Therefore, most carriers will request the physician’s consent to settle even when the insurance policy does not require it.

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