Being sued is an issue that no healthcare practitioner wants to think about, but the reality for physicians today is that facing a lawsuit is something they need to be prepared for in the modern healthcare environment. In some high-risk specialties, more than two-thirds of clinicians will experience a claim during their career.
With a backdrop of increasingly influential social and economic factors, today’s courtrooms present a myriad of challenges for healthcare professionals’ defense teams.
In the past several years, there has been an alarming increase in the rate of nuclear verdicts, or medical malpractice jury awards of more than $10 million. Nuclear verdicts are a major driver of social inflation, a phenomenon whereby the growth in average claim costs outpaces general inflation. These outsized awards underscore how jury decisions are influenced not only by the facts of the case but also by prevailing societal attitudes and cultural narratives. Jurors’ perspectives, which they bring into the courtroom, are increasingly shaped by public discourse and social media, resulting in verdicts that reflect broader debates about fairness and responsibility, rather than just medical evidence.
Plaintiffs’ attorneys leverage these dynamics during jury selection, often examining prospective jurors’ social media to assess potential biases. Strategies such as the “reptile theory” are deployed to invoke primal fear and elicit strong emotional responses, framing defendant physicians as ongoing threats to society.
In the present day, where jurors are already accustomed to seeing social influencers become millionaires, huge monetary contracts for professional athletes and actors, and billion-dollar lotteries, the stakes have never been higher to protect physicians’ livelihoods and professional reputations. Most people shrug at a multimillion-dollar verdict—something that could completely derail a physician’s career.
Whether you are preparing for litigation or have yet to experience a claim, it is a career-saving decision to evaluate your professional liability carrier’s claims defense team and understand what you should expect from them.
Assembling a Strong, Collaborative Defense Team
The day you receive a summons and complaint (a lawsuit) can feel like one of the worst days of your life. You’ll likely experience a rollercoaster ride of emotions—including anger, anxiety, depression, and physical illness.
It is critical to understand that from the moment you have been officially served legal documents, the lawsuit has commenced. These documents require a formal response within a specific time limit. You should notify your professional liability carrier immediately—failure to respond appropriately may jeopardize your defense or even result in a default judgment against you.
Within 24 hours of receiving your first report of a claim, your carrier should assign a claims specialist and seasoned defense counsel who will promptly contact you to discuss your report.
Your claims specialist should demonstrate respect, transparency, clear expectations, and steadiness during an overwhelming and uncertain time. They should earn your trust by making you feel confident from the beginning that they will be working with you every step of the way. Your claims specialist should assure you that the case isn’t just extremely personal to you, it’s very personal to the carrier too. This should make you more comfortable knowing that you and your team will be putting on a united front together.
The claims specialist should learn everything possible about your case because their role is to become your advocate and guide throughout the entire claims process. They should have a deep understanding of the facts of the case, medicine involved, trial venue, and the legal strategy your team will approach the case with at trial.
Your insurer should be highly selective when choosing your defense counsel, providing an attorney who has a well-earned reputation for unyielding defense, specializes in malpractice cases, and has local knowledge of the courts and jury pool. Your attorney will contact you right away to discuss the allegations, provide you with information about the next steps, and answer any questions you may have during this first stage in the process.
A strong claims team will establish communication with you on several levels, with initial phone conversations, emails, virtual meetings, and in-person meetings, such as strategy sessions, defense attorney conferences, and sometimes, just being there for you as a shoulder to lean on. As your team and support partners, they know how stressful the claims process can be and should make it as uncomplicated as possible by tailoring their communication methods to your preference.
Understanding Your Role During the Life Cycle of a Claim
From the outset of the claim, counsel for both parties engage in extensive discovery to understand the nature and extent of the care provided, as well as the merits of the allegations. During discovery, plaintiff and defense attorneys review all medical or dental records related to the case to fully evaluate the claim. The discovery process can be lengthy because it often includes investigations, expert reviews, depositions, interrogatories (written questions by opposing counsel), and strategic reassessments. The journey through discovery is rarely linear, and it is often two to three years, or even longer, before a case is brought to trial in most jurisdictions.
Ongoing communication with your defense attorney is vital while the lawsuit is pending. Your attorney will keep you updated on information that is learned about the allegations made against you and work with you and the defense team on how to strategically move forward.
You will also need to be prepared for extended periods of inactivity. The legal process is convoluted and beyond your control, and you may see periods where there is a lot of activity followed by prolonged periods of stagnation.
At some point, enough information will have been gathered during the pretrial discovery process for an assessment to be made about whether the case is defensible through trial or settlement should be considered. These decisions will be made between you, your attorney, and your carrier.
It is crucial for you to understand that you have a significant voice in making the decision between consenting to a settlement or going to trial. Your reputation is your livelihood. When it comes to a claim against you, make sure that you’re in control and are with a carrier that will not settle a case without your consent, where permitted by law.
A strong claims defense team will always start with a commitment to defending you and your case—unless facts found in the discovery period dictate otherwise. As the case evolves, your defense team may pivot and recommend what they believe will lead to a favorable outcome for you. If they are recommending settling due to unfavorable circumstances, such as risks, personal exposure, expert assessments, or the venue, keep in mind that being flexible is not a sign of weakness, it’s a sign of expertise. Your attorney and claims specialist should have in-depth experience in suggesting what they feel is reasonable, and you should expect candid, respectful, and thorough explanations so that you can make a well-informed final decision as to whether or not you want to proceed to the courtroom.
Going to Trial: What Excellent Claims Teams Do Differently
The key to having a successful trial and overcoming your lawsuit is through preparation and support. A strong defense team will prepare you to be a confident, active participant in your own defense. They should guide you through legal jargon, deposition engagements, arguments, verdicts, and managing the stress caused by being involved in litigation.
A standout carrier will go the extra mile during your trial to make you genuinely feel cared for and supported by ensuring the fight is a concerted team effort—not just you and your attorney. Your claims specialist should attend with you in the courtroom daily, comforting family in your corner, observing the proceedings, providing real-time insights, and escalating decisions rapidly by bringing in additional experts or claims leaders from the carrier if needed. When situations shift during a trial, delays can be costly, so it’s imperative that your defense counsel empowers the team to be decisive and act quickly without burdensome red tape.
When it comes to modern-day juries, a strong defense team will understand and employ strategies to combat how social and economic changes have impacted the litigation landscape.
In the past, most jurors began a trial with the mental premise that the doctor had the patient’s best interest in mind and the patient received reasonable care until proven otherwise. Today, due to tactics by plaintiffs’ attorneys and social influences, jurors have a tendency to start with the mindset that the physician is just part of a system that only focuses on profit. They now see each physician as a deep pocket and the burden has shifted to the defense to prove otherwise.
Aggressive plaintiff attorneys’ tactics have amplified under the new social and economic context of litigation. Record nuclear verdicts have emboldened newer attorneys, and the aforementioned reptile theory is being used to frame the defendant as a threat with the intent to have fear overcome logic. Other tactics such as making each individual healthcare practitioner responsible for care outside their scope of practice have also become prevalent.
Given such a potentially prejudiced environment for the defendant, the need for a carrier to provide their insured physicians with an experienced, sophisticated, strategic, and responsive claims defense team is more critical than ever.
Reclaiming Confidence in Yourself and Your Carrier Through a Trusted Partnership
Having a malpractice claim against you can cause severe professional and personal disruption. It may even cause you to doubt your career or think about adopting defensive medicine to safeguard you from future claims. A strong claims defense team doesn’t just manage your case, they stand with you throughout the entire life of a claim and help you restore control, confidence, and clarity of the situation.
When evaluating whether your insurer has the strength to protect you against malpractice allegations, you must determine whether or not they can provide you with:
- Clear, prompt communication
- Education about the process
- Medical-literate claims specialists who invest in being knowledgeable about your case
- Highly, selective, high-performing defense counsel
- Proactive, strategic planning
- Support through emotional and professional stress
- Rapid decisions when cases turn
- Nonstop advocacy for your best outcome
A malpractice claim against you can feel like the end of the world—but it isn’t. With the right partner by your side, it becomes a challenge to manage, not a career-ending event. Your livelihood and professional reputation deserve more than hope; they require preparation. Choosing a malpractice insurer with a proven history of strong, physician-focused defense is one of the most important decisions you can make. Do your homework now so that if a claim ever arises, you can move forward with confidence, knowing you selected a partner built to protect you when it matters most.
The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.
Mike Tamucci
Mike Tamucci is Vice President of Claims for The Doctors Company.
