With over 90 percent of all medical
negligence claims ultimately being
settled, why aren’t most claims quickly resolved? Why do parties go to litigation that may drag on for years? A good
share of the problem exists with the attitude of the parties involved.
“As a practicing attorney, I believed that
professional liability insurers wanted their
defense attorneys to delay cases for as long
as possible,” says Robert Blasio, president
and CEO of Western Litigation Inc. “Only
years later, after I had left private practice
and entered the insurance industry, did I
learn that virtually all for-profit professional liability insurers want their defense
attorneys to resolve cases as quickly as
possible, thereby allowing those insurers
to take down reserves and increase capital
and surplus for the writing of new business.”
Smart Business talked with Blasio for
his insights on how attitudes can be
changed to more expeditiously settle
health care claims.
What is the first step to speeding up the settlement process?
The first step is to realize that all parties
want to accomplish the same objective. In
most cases, the claimants want to know
why the adverse outcome happened, what
will be done to prevent future occurrences
and what compensation they are going to
receive for their problem. They want this
done sooner rather than later. Most health
care providers want to get the matter
behind them and get back to the business
of providing health care. The insurers want
to mitigate their liability and settle as soon
as possible so as not to tie up funds that
they could use to write new business. All
sides are essentially of the same mind.
If the principals involved are all looking for a
quick resolution, why isn’t that happening?
Unfortunately, too many attorneys have
forgotten that they are supposed to be
‘counselors at law.’ With hourly billing, or contingency fees, it has become too tempting to look at the bottom line for the attorney or law firm and stretch things out
rather than look for what is quickest and
best for the litigants.
Is it necessary for a case to go into litigation
before a settlement is reached?
No. Because of the time and costs, litigation is really a lose-lose proposition.
Although there is inherently more emotion
involved in the health care arena because
of the professional reputation of the defendants, it remains important to impartially
evaluate each matter and to make an intellectually honest decision before resorting
to litigation.
What are the steps to follow to attempt to
resolve the situation without litigation?
The overall situation must first be evaluated. The patient, the health care provider
and the insurance company must all be
transparent and share information. When
everything can be placed on the table at the
beginning, there is a much better chance
that there can be a quick resolution that
will satisfy all parties. When a matter enters litigation, there are automatic roadblocks that prevent this kind of upfront discussion. A case drags on, expenses
increase for everyone and, then, just as the
case is finally ready for trial, the parties
finally see the perils of trial and begin discussing a resolution. It is also important to
make each party understand completely
the dangers of not settling at the outset of
each case.
Do these processes apply only to claims in
the health care field?
Actually, no. This approach is applicable
in any situation where a person or group
feels that they have been hurt in some way
by someone else’s actions. The sooner
everyone can move on, the better off they
are all going to be.
What are the roadblocks that have prevented
quicker settlements?
People may not recognize that they have
a choice. Once cases enter litigation, the
lawyers may not work to satisfy their
clients’ true objectives. Also, the court system and its discovery rules prevent sharing
of information. Lastly, sometimes simple
greed by one or more of the parties creates
an obstacle.
Will a quick resolution always be the best?
There will always be cases that need to
be tried. However, the general rank and file
could be settled very expeditiously to the
satisfaction of all. Even if a case must be
tried, it is still a good idea for all parties to
have as much information upfront, thereby
allowing them viable options to the litigation process.
ROBERT BLASIO is president and CEO of Houston-based
Western Litigation Inc., a division of Gallagher Healthcare
Insurance Services. Reach him at (713) 935-8820 or by e-mail at
[email protected].