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

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.

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Attorney answers 5

Best Answer
Posted

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 client relationship. To establish such a relationship, the prospective client would need to meet with me in person, and have a detailed discussion about all the facts and circumstances surrounding your case.

Asker

Posted

I think you are in line with what my attorney has said to me. It is easy to say go on about my business when in the end I will not recover the economic damages by the time everyone gets paid. I will get nothing for the non economic damages or very little considering what I have endured and will continue to endure. I thank you for the answer though. I have lost most of my ability to trust in anyone, so a random inquiry on AVVO is helpful to me. Thank You for your considered response.

Posted

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

Asker

Posted

He is of the opinion that insurance limits do limit your recovery. Thus there is no need for medical malpractice caps as insurance limits serve as caps in the real world. That seems unfair to me.

Asker

Posted

So, I guess my question is now if I were to get a jury award in excess of his insurance policy limits could I take the insurance money and then would I be forced to sue him personally (with a different attorney) to put a lien or something on him for the excess? My attorney said he will just declare bankrupt and slip out of further accountability.

Posted

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...

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Asker

Posted

I guess it is not the answer I want to hear, so I ask on AVVO to see if there are any other answers. I am anxious about the trial. This is a very bad and very unfair process. Everything is in favor of the Dr. It is a tough and unfair on the victim.

Posted

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/S3454-2013. Good luck.

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Asker

Posted

Thank You, I will ask my attorney about that. He has told me the defendant physician had 1.3 and did not indicate there was anything else. I will certainly ask about this.

Asker

Posted

I know what is in my best interest is in my attorneys interest and I am not trying to be a smart ass, I just want to be as informed as possible.

Joseph Jonathan Brophy

Joseph Jonathan Brophy

Posted

Ascertaining the insurance coverage is a very fundamental job of your lawyer. Unfortunately lots of doctors in New York don't carry excess insurance. At one time it was available for the asking and funded by a fee on hospitals. The fund grew so large that back in the Pataki administration, the legislature raided the fund as one of their budget gimmicks and now doctors have to pay for excess coverage. Many don't. .

Asker

Posted

The doctor does not have the excess insurance.

Gregory Scott Gennarelli

Gregory Scott Gennarelli

Posted

sorry to hear, good luck

Posted

Gregory laid it out well

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