Your Guide to Underwriting Medical Malpractice Cases

April 21, 2017
7min read

Medical malpractice cases are some of the most complex and challenging for attorneys to prove and win. Demonstrating that a physician acted negligently in treating his or her patient is no small feat. To do so, four legal elements must be shown to be true:

  1. a professional duty owed to the patient;
  2. breach of such duty;
  3. injury caused by the breach; and
  4. resulting damages.

For you and your legal funding company, this high burden of proof makes med mal cases similarly high-risk and high-reward.

To help you and your team better understand and assess these cases, I'm going to break down key case information and documents needed to accurately assess a medical malpractice claim for legal funding. The goal of this post is to help all levels of a legal funding organization:

  1. Business owners: update and assess document requests and underwriting criteria
  2. Underwriters: get a refresher on what to look out for, and provide another framework for you to compare your criteria against
  3. Case managers: if you agree with our suggestions in "Why Failing to Build Underwriting Operations is Losing You Money" you will benefit from this article by learning what else to look out for and increasing your legal fluency when discussing cases with attorneys

   5 Pieces of Information You Always Need



In order to quickly understand the case issues in question, it is always a good idea to review a copy of the complaint, which can be used as a starting point for the review of other relevant case documents, such as the answer to the complaint and summary judgment.  

Case summary

As mentioned in "Common Errors All Underwriters Make

," the narrative of every case is important, especially for medical malpractice cases. The complaint is your starting point, but to balance out the one-sided nature of that document, you should ask for a brief summary of case stage, the anticipated timeframe until resolution, as well as settlement offer(s), pleadings and demand package. Each of these will help you grasp the full particulars of the case.  

Expert Report

The specific duty owed by the physician to the patient is defined by the profession itself. Thus, a member of the profession will need to indicate to the plaintiff's attorney (and potentially a judge and jury) what the defending physician should have done or not done under the particular circumstances and whether such conduct constitutes negligence by violating the standards of care of the profession.

The existence of an expert's report in the case is an important milestone for your own assessment.  

Treatment Records

Treatment records should include diagnostics, assessment of injuries, summary of condition and treatment, known risks of treatments and/or pre-existing injuries. In med mal, these are often voluminous, to say the least. Therefore, depending on the tech-savviness of the attorney, you may need to help him/her share the documents with you via file-sharing software.  

Insurance Coverage Information (Policy Limits)

This item is pretty self-explanatory, but still a good reminder to seek information about all accessible policies e.g. commercial, third party, spouse, etc..  

Documents to help you understand the fee split

Retainer Agreement executed by attorney and client

Obtaining the retainer agreement will help your underwriter most efficiently determine the legal fees involved in the case. For complex and costly cases like med mal, it is very risky to assume the standard thirty-three percent contingency fee.

Procuring this document also gives you a chance to search for any ambiguity,  which can lead to numerous legal challenges if the issue ever goes to court. You may be shocked to know that, in many cases, retainer agreements are poorly drafted and therefore require scrutiny.

A fully-executed retainer agreement should clearly specify the name of the attorney as well as the client and the case. The attorney's compensation should be clarified as well.

In case of any doubt regarding the latter, you may request that either the attorney or the plaintiff (depending on who your client is) provide email correspondence confirming their agreement as to fees and representation.  

Fee-split Agreement with co-counsel (if any)

Calculating attorney fees, which eventually need to be deducted from the overall settlement, is another crucial step in the documentation review process. A fee-split agreement would indicate other counsel on the case who need to be paid as well.

Keep an eye out for any other attorney names which pop up during your web research on the concerned case so that you can verify if they have a share in the overall fees.  

Sharing Fees with Referral Attorney

As for attorney funding, it is always a good idea to obtain written confirmation that the attorney does have to share his fees with a referral attorney. An email confirmation is sufficient in most instances.  

3 Documents for Claims with a Wrongful Death Component


Death Compromise Order

In cases where the plaintiff is deceased and the attorney is representing an executor of the estate of the deceased plaintiff, it is imperative that you review the death compromise order. This rescript grants the executor the authority to carry out any and all documentation, stipulations, releases and agreements required to effect the settlement.  

Letter of Administration

A letter of administration will prove that the person claiming to be the administrator of the estate of the deceased plaintiff has been appointed by a court of competent jurisdiction.  

Petition to Court

A petition to surrogate's court should be requested as and when it is filed, given that such will provide a process for allocation of the settlement proceeds among the relevant distributees. At that time, all outstanding liens such as Medicare or Medicaid will come to light, which is essential, as these amounts will need to be deducted from the final settlement amount.  

Documents for Settled Med Mal Cases


Fully-executed Settlement Agreement and/or Fully-executed Release

A settlement agreement is clearly crucial in determining exactly which party is ultimately responsible for payment.

The settlement agreement should be executed by ALL parties involved, so that it is binding. Although this is quite obvious, it is even more crucial!

Proof of filing with the court can also be requested. The particulars of the executed Release document, such as name of released parties, case reference number and claim number, should match those of the settlement agreement.  

Stipulation of Discontinuance and Hold Harmless Agreement

Prior to the release of any settlement funds, a stipulation of discontinuance has to be obtained by the defense attorney, which most likely will be kept in escrow until payment is made by the insurance carrier involved. As an underwriter, it should be part of your file as well.

Additionally, a hold harmless agreement should be requested for review, since it contains representations as to liens and the official agreement not to pursue claims against any other parties who would have a claim for contribution, indemnification or subrogation.  

Further Risk Minimization

Bankruptcy Risk

It is always a good idea to do a thorough debtor rating while looking over potential cases to fund. In most instances, this is done by another department within the funding company. However, as an underwriter you are responsible for verifying exactly who the debtor or defendant is, who will ultimately pay the settlement.

A thorough look into the financial health of a debtor (which is usually an insurance company, at least in the type of case discussed above) can help you avoid a debtor who might claim bankruptcy a few months down the line. Under these circumstances, the settlement must be reduced, or a stay has to be put in place, which will further delay final resolution and disposition of the case.  

Court-stamped Documentation

As a matter of procedure, insist all case documentation that has been filed in the court be clearly court stamped. If this is not possible, order the attorney to provide any other proof that the documents in question have been filed with the court.  

Defense Counsel

Check law firm websites to confirm names of defense counsel listed on documentation provided by a client to ensure that the said defense counsel is still with the firm.   You do not want to be stuck holding a document which is no longer binding because the defense counsel left the firm and the firm intends to fight the settlement, or at least attempt a renegotiation.     

Independent Research

Whenever possible, keep tabs on the progress of the case if the case is available on the relevant court's website to ensure that there are no undue delays or any other matters impeding the smooth resolution of the case.  

Disciplinary History of Attorney

To maximize caution and minimize risk, it is always helpful to check the status of the attorney you are planning to fund using the State Bar and any available disciplinary history. If applicable, focus on the reasons for any censure or suspension on your attorney's record. For example, if he/she was reported for using delaying tactics in court or tardiness, you can and should assume there is lack of commitment to the profession and, ultimately, to the client. It'd be better to decline that attorney then waste resources personally ensuring your case is handled in a timely and professional manner.   

  This post was written based on outside underwriter expertise

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