Legal Blog

When Your Insurer Wants You to Settle Your Malpractice Case…but You Do Not


The Situation:  According to the AMA, 1 out of every three physicians in the U.S. is sued for medical malpractice by the time they are 55 years old.  When sued, a physician must report the lawsuit to his medical malpractice liability insurer, who will assign a medical malpractice lawyer to defend the physician.  Sometimes, the insurance lawyer and/or company want the physician to settle the case, but the physician does not want to do so.  The physician does not think that he committed malpractice.  What can the physician do?

The Potential Issues:  National Practitioner Databank; state board licensing; reputational implications; premium increases on future medical malpractice insurance policies; and hospital privileges.

The Solution:  Unfortunately, this situation is not a new one.  Physicians in these situations can feel like their interests and desires are not being met.  Sometimes the assigned lawyers have other overriding interests or view the case differently, or the insurance company sees a cost-benefit to settling the case rather than going to trial.

One thing you can do is hire your own personal healthcare counsel.  Your personal counsel would not appear in court or work on your case day-to-day but rather would be representing your interests globally by assuring that the case is handled appropriately and in your best interests.  This could include discussions with the insurance lawyer and/or the insurance company and/or letters to them, putting pressure on them to defend your case.  Often times the physicians’ medical malpractice insurance policy will contain a “consent-to-settle” clause which requires a physician’s approval to settle his case.

There are many implications to settling a case, including a report to the National Practitioner Databank, state board of medicine, and sometimes even the physician’s employer.  There can be a domino effect that can implicate staff privileges, medical licensure, insurance premiums, and payor agreements.  If a physician has a medical license in multiple states, the implications also cross state lines.

Personal counsel can help with a strategic plan and defense and provide appropriate support in communications with the insurance lawyer and insurance company.


Maggie DiCostanzo is a principal attorney in Offit Kurman’s Healthcare practice group. For nearly 20 years she has focused her legal practice by representing physicians, hospitals, post-acute care facilities, and other healthcare professionals, delivering health law advice and counseling as well as representation in regulatory, general liability, and professional liability matters.  She is also a registered patent attorney with the U.S. Patent & Trademark Office, and drafts licensing agreements and other intellectual property-related documents. Ms. DiCostanzo also assists lawyers in Offit Kurman’s other practice groups, including Business Law and Transactions, to address discreet healthcare issues.






Offit Kurman, one of the fastest-growing, full-service law firms in the United States, serves dynamic businesses, individuals and families. With 17 offices and nearly 250 lawyers who counsel clients across more than 30 areas of practice, Offit Kurman helps maximize and protect business value and personal wealth by providing innovative and entrepreneurial counsel that focuses on clients’ business objectives, interests and goals. The firm is distinguished by the quality, breadth and global reach of its legal services and a unique operational structure that encourages a culture of collaboration. For more information, visit