Musings of a Dinosaur

A Family Doctor in solo private practice; I may be going the way of the dinosaur, but I'm not dead yet.

Friday, October 30, 2009

Ask Your Lawyer If He Carries Malpractice Insurance; You May be Surprised

I've posted here and here about the responses of lawyers in two different states to the proposal that they be required to disclose to their clients whether or not they carry professional liability insurance. In general, the publicized responses have been against it.

I would like to share a modest proposal for dealing with this issue. Best of all, it doesn't even have to involve the lawyers at all.

Let me begin by pointing out that the essence of professionalism is responsibility; doing the right thing not because you will get in trouble if you don't, but simply because it is the right thing to do. Seen in this light, carrying professional liability insurance to protect your clients/patients against the financial ramifications of your inadvertent errors is the responsible course of action.

When presenting oneself to the public as a professional, it is to be hoped that one is representing that one is responsible. Therefore the vagaries of whether or not a given group of professionals (ie, doctors) is required by law to carry malpractice insurance is immaterial. It is not unreasonable for a medical patient, a legal client, or a patron of any other professional to assume that said professionals carry insurance appropriate for their business.

As came to my attention via the above linked posts, there are apparently large numbers of attorneys who do not take the responsible course of carring liability insurance. Here's what I propose we do about it:

I propose a large public service campaign to educate the public about the fact that many lawyers do not carry malpractice insurance. Just as consumers have been sufficiently educated to inquire of their doctors whether or not they are board certified, we should explain why it is important to ask their attorneys whether or not they carry malpractice insurance. The idea, of course, is to raise the question of why would one would want to engage the services of someone too irresponsible to protect his clients' interests.

Any philanthropist out there want to donate a couple of billboards?


At Fri Oct 30, 02:44:00 PM, Blogger kg said...

:) It is an interesting thought, as one that needs malpractice insurance, and would need a lawyer to help with such lawsuits, I'm thinking the average lawyer figures they could talk/fight/litigate their way out of any lawsuit that came their way. Or get one of their buddies that owe them to help them out!

At Sat Oct 31, 08:02:00 AM, Blogger Unknown said...

Interesting that my landlord (a lawyer) and another business that I work with all require that I have liability insurance and malpractice. I have to prove it each year. I am a Massage Therapist.

At Sun Nov 01, 12:28:00 PM, Anonymous Anonymous said...

"Seen in this light, carrying professional liability insurance to protect your clients/patients against the financial ramifications of your inadvertent errors is the responsible course of action."

Whether or not it is the "responsible" thing to do if you're a lawyer would depend on the types of cases you handle and the amount of assets you hold. If all you do is DWIs and traffic tickets and other similar misdemeanors, having millions in liability insurance makes no sense. Particularly if you are fairly liquid. That's pretty basic economics, and not really an indication of your level of responsibility at all.

I realize physicians are essentially the mouthpieces of the insurance industry these days, but you guys are really taking it a long way, don't you think? Why don't you just do a billboard advising the public to inquire of everyone, from their mechanic to their plastic surgeon, for a copy of their existing policy? The insurers might even give you a commission!

At Sun Nov 01, 01:22:00 PM, Blogger #1 Dinosaur said...

If all you do is DWIs and traffic tickets and other similar misdemeanors, having millions in liability insurance makes no sense.

Straw man. No one said anything about "millions". I have auto homeowners' insurance in amounts sufficient to cover my needs, not some arbitrary figure (as opposed to my medical malpractice insurance, which does have statutorily required amounts).

Why are attorneys so resistant to the idea that they are not perfect, and that their clients deserve protection from their fallibility? The nature of the cases they handle determines the level of coverage they need. (For example, I recently discovered that patent attorneys' premiums are significantly higher than other lawyers'. It turns out that when they screw up -- most commonly by missing a deadline -- it gets expensive.)

I realize physicians are essentially the mouthpieces of the insurance industry these days...


At Sun Nov 01, 02:57:00 PM, Anonymous Anonymous said...

Your whole fascination with this issue is odd. You have no idea how many lawyers do or do not carry malpractice coverage. Yet you believe large numbers (however many that means) are unconcerned with their clients' welfare and believe they are infallible? Doesn't make much sense.

I guess it could be worse. Lawyers could be trying to screw the clients damaged by their negligence by arbitrarily capping their recovery.

At Sun Nov 01, 03:27:00 PM, Blogger #1 Dinosaur said...

The issue is one of a double standard. I am considered so untrustworthy that the levels of malpractice insurance I am required to carry are stipulated by law, yet the lawyers get all bent out of shape at the mere proposal of a rule requiring them simply to disclose whether or not they carry it. (Not to actually carry said insurance; perish the thought!!)

At Sun Nov 01, 04:21:00 PM, Anonymous Anonymous said...

That sounds like a beef with your legislature because not all states have that requirement. And it's probably also due to the fact that the cost of your negligence falls on the govt in that it often picks up the tab for future care so the govt has a vested interest in making sure it can get the money elsewhere.

A few posts on a blog doesn't really qualify as a mass lawyer uprising against it. I expect you would see an equal objection from physicians were that disclosure proposed.

At Mon Nov 02, 12:45:00 AM, Blogger William said...

The lawyers just don't get it, do they? There IS a double standard, and, yes, it is due to the actions of the legislature. Which is, by and large, made up of LAWYERS. Gee.

No conflict of interest THERE,

At Mon Nov 02, 08:27:00 AM, Anonymous Anonymous said...

This is a foolish sentiment often repeated. Why do people believe everyone who ever went to law school has the same political views? It's silliness.

The number of legislators, especially federally, who ever saw the inside of a courtroom is ridiculously small. And those who represented individual plaintiffs is even tinier. There are more practicing lawyers on the state level but even that's declining. If there was some conspiracy to protect lawyers it ain't working very well.

At Mon Nov 02, 08:50:00 AM, Blogger Resident Anesthesiologist Guy (RAG) said...

Me thinks that all the anon comments are generated by a lawyer(s?) who doesn't have the cajones to actually post with some form of identification. The fact that they are crying afoul at the mere suggestion they be required to tell clients if they do or do not carry insurance is hilarious. Of course physicians are going to be laughing - we've had to do it for years...and subsequently worry about frivolous lawsuits b/c of it. Deal with it.

I for one will be asking my attorneys if they do carry any from now on (as I've had some poor outcomes from missed deadlines in the past, etc by an attorney and there was little measure I could take to rectify the wrong).

At Mon Nov 02, 09:54:00 AM, Anonymous Anonymous said...

Actually no one who posts here is crying foul about it. The strongest comment is that it's no big deal. Read closer. And nowhere are physicians required to post notices that they have insurance. Again, read closer.

At Wed Nov 11, 09:53:00 AM, Blogger Mr. 618 said...

As has been pointed out already, laws are created by legislatures, which are overwhelmingly comprised of lawyers.

Lawyers, by and large, have seen fit to exempt themselves from the levels of scrutiny they love to apply to others.

For instance, lawyers LOVE to sue doctors for malpractice, but try finding a lawyer willing to sue another lawyer for malpractice (or for anything else, for that matter).

Lawyers are always ready to 'police' the other professions, but when it comes to others policing them? Not so ready. They demand the right to police themselves, due to the 'unique nature' of the law. Yet they feel there's nothing 'unique' about the practice of medicine as opposed to, say, flipping burgers?

Lawyers should be held to the same standards as those they try to regulate.

Of course, if that were to happen, there'd be more lawyers in prison than drug dealers AND 'terrists'.

At Thu Dec 03, 09:39:00 AM, Anonymous Ron Miller said...

I'm a trial lawyer and I agree. The same should be true for any professionals who have clients where there is substantial risk of injury or economic loss and a result of their negligence.

At Thu Dec 03, 02:39:00 PM, Anonymous Woodruff said...

This requires more study. On its face, I am not opposed to a rule requiring lawyers to post whether or not they carry malpractice insurance on the state bar website. Additionally, I wonder if lawyers should also get the same pre-lawsuit protections that the medical industry enjoys.

Certain Courts do require a lawyer to carry $250,000 in errors and omissions insurance to get court appointments.

At Fri Dec 04, 10:33:00 AM, Blogger The Curmudgeon said...

In Illinois, lawyers (like me) are required to disclose whether we carry malpractice insurance.

When I set up my own practice, this was one of the first things I sought out. This was before disclosure was required, if I recall correctly. It was important for me, my family and my clients that I have protection.

The efficacy of this protection is sometimes suspect and the little quirks of standard legal malpractice coverage can be ruinous to a solo practitioner or small firm. But that's a different story, isn't it?

I came across a reference to this post on Overlawyered -- but, if memory serves, we've communicated before... one dinosaur to another.

At Fri Dec 11, 02:46:00 PM, Anonymous Anonymous said...

In Minnesota, the state bar disloses not only whether laywers carry insurance, but what that insurance is, the the lawyer's address.

It is not difficult find a lawyer to sue lawyers for legal malpractice, just like you would sue for medical malpractice (atucally it is easier because there aren't the same bars to filing a case). It would be difficult to sue a lawyer for malpractice when the claim is legally frivilous- a situation where the lawyer filing the case could be subject to discipline for watsting the court and opposing counsel's time.
Legal clients, like medical clients, often feel that they are wrong, especailly when somethign goes wrong with their case. Bottom line: Lawyers get sued too. And most attorneys who represent plaintiffs in civil litigation carry insurance.
And we don't like the premiums either.


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