I have a medical malpractice case that is almost ready to go to trial. What if the award exceeds Drs insurance?

Asked 10 months ago - Binghamton, NY

I have a good lawyer and we have good experts and affidavits and the forensic economist has a number of just actual damages of 1.1 million. That does not include any compensation for pain, suffering, disfigurement, ptsd or anything that can not be counted. His insurance is for 1.3 million and we have been forced to spend a great deal of money to keep the case on track. Is the maximum I can recover 1.3 if that is all the insurance he has? I mean my life has been ruined and he has been inconvenienced due to his gross medical malpractice. I would like to take his stuff and garnish his income but I understand that is not done as Drs protect their private assets. Opinions? Thanks.

Attorney answers (5)

  1. David Ian Schoen

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    Answered . This is a discussion that you need to have with your own attorney who is in a position to give you the best answer.

  2. Michael R Varble, Esq.

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    Answered . Your attorney should be able to handle this question. That being said, your attorney should be able to do an asset search for the doctor with computer aided research. If the doctor doesn't have sufficient assets, you may be well advised to take the policy limits and go on about your business because, if you don't, you could end up with a bankruptcy petition and a discharge in bankruptcy. All of this is hypothetical of course, so I would have a long chat with your attorney very soon about this issue because it would affect my discussions with my client about settling a case.

    The information provided herein is for informational purposes and should not be construed to establish an attorney... more
  3. Gregory Scott Gennarelli

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    Answered . If the doctors' insurance policy is $1.3 million, there may be excess insurance coverage provided by the State. The State of New York offers an excess liability program for doctors, surgeons and dentists. In 1986, the NYS Legislature passed the Medical Malpractice Reform Act which allows doctors, surgeons, and dentists to obtain an additional $1 million per incident / $3 million aggregate coverage for medical malpractice insurance. To qualify, the doctor must carry underlying limits of $1.3 million per incident with a $3.9 million aggregate limit per policy year. Since it appears that the defendant doctor in your case has $1.3 million, he very well may have state excess coverage. Speak with your attorney about whether the doctor has such coverage. You always have the right, if you so choose, to seek to recover the full amount of any judgment from any available assets, though in practice it is not often done. FYI, There is currently a Bill before the NY State Senate that proposes to lower the amount of primary insurance from $1.3M to $1m in order to qualify. A copy of the Bill can be found here. http://open.nysenate.gov/legislation/bill/S3454.... Good luck.

    New York Plaintiff's Personal Injury Attorney Serving NYC, Long Island, Westchester and the surrounding areas.... more
  4. David Herman Hirsch

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    Answered . I agree with Mr. Schoen. To be honest, it seems odd that if you have a "good lawyer" you would be posting your question to Avvo, but I mark it up to the anxiety you must be having with your case moving toward trial. Discuss our concerns with your attorney, who certainly can give you a more focused response... Best of luck to you...

    THESE COMMENTS MUST NOT BE CONSIDERED LEGAL ADVICE. Comments made on websites such as Avvo.com are provided for information purposes only, and you should not base a decision to act or refrain from acting based upon this answer. The only way to determine how the law may apply to your particular situation is to consult with an attorney licensed in your jurisdiction. Answering this question does not create an attorney-client relationship or otherwise require further consultation. . That relationship is established by the execution of a written agreement for legal services. Also, see Avvo's terms and conditions of use, specifically item 9, incorporated by this reference.

  5. Christian K. Lassen II

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    Answered . Gregory laid it out well

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