The defense attorney thinks that the plaintiff has a wonderful medical malpractice case. However, he is unable to convince the doctor to start negotiations even when it is completely logical to do so. Can the insurance company override the doctor’s refusal to begin to negotiate?
Who is actually in control?
There will be certain instances where the doctor will have the ability to control, whether his attorney enters into settlement negotiations. There are certain medical malpractice insurance policies that will allow the doctor the ability to control the transition of the case and this situation, for instance, whether the insurance company can begin to negotiate. This is known as "consent to settle" provision.
If the doctor feels that he has done nothing wrong, and does not want to settle and his policy has this provision, then he has the right to tell the insurance company and the attorney that he is not settling the case. The doctor may not want to listen to whether he has a strong case or not or how much ammunition the other side is sitting on, and could be adamant on trying the case. In such instances, can the insurance company override the doctor?
In all likelihood the answer is no, the insurance company will not be able to override the doctor’s decision about not negotiating. If doctor’s insurance policy has the consent to settle provision, then the policy is a contract between the insurance company and the doctor, and the company has to honor all provisions of the contract.
It Depends on the Type of Policy
However, many of the newer policies do not have such restriction in them. The new policies do not have this provision because insurance companies were tired of having a doctor dictate whether a case can be settled prior to or at the time of trial. If the insurance company felt that, a settlement was financially feasible and it was better to resolve the case prior to trial, then they wanted the freedom to go ahead and do that.
The insurance companies did not want the doctors involved in such decision making process. There could be emotions blocking reason and insurance companies were tired of this intractable nature. Therefore, most of the insurance policies for doctors for professional liability, no longer give the doctor such control.
However, insurance companies still provide policies with the consent to settle provision, but they charge a very high premium for such policies. Some doctors do in fact prefer to buy these policies, but the majority of doctors do not mind not having the provision. Most doctors do not need or want such control, and are happy with the insurance companies handling the negotiations.
Which Type of Policy
Hence, to answer the original question about whether insurance company can override a doctor’s refusal to begin negotiations, the answer is that it will depend on the type of policy the doctor has bought. If the policy has a clause of consent to settle, then the insurance company cannot override the doctor, and the doctor will have full control whether to negotiate a settlement or take the case to trial. On the other hand, if it is a newer policy and the doctor has not insisted on such a clause to be included in the policy, then the insurance company has control and it can override the doctor when it feels it must.