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The Harm Caused By Malpractice “Consent Clauses”

Posted by Andrew J. Barovick | Jan 16, 2014 | 0 Comments

Physicians have the option to purchase medical malpractice insurance policies, which, at the cost of higher premiums, include special “ consent clauses .”

These clauses stipulate that doctors being sued for malpractice must first give consent before their insurance companies can settle any claims filed against them. There are a number of reasons why these types of clauses are thought to be detrimental to all the involved parties: 

It hurts victims of malpractice : These types of clauses mean that, even in cases in which a doctor's error was clear and caused severe injury, the plaintiff may have to wait years to see any vindication of his or her legal rights or to receive any compensation. This is an additional harm being done to someone who was already caused grave damage by the offending physician in the first place.

The clauses are unnecessary in cases in which a doctor has a meritorious defense to malpractice: In those cases in which a doctor being sued has a strong defense, or the issues in question are at least disputable, insurance companies will often fight and go to trial, if necessary. So the only cases in which these clauses have to be exercised by the doctor policyholders are those in which the insurance companies themselves recognize that the facts are not on their side and want to reach a settlement prior to trial.

Greater expense to both sides: Because these matters cannot be settled without the doctor's consent, clear cut cases can last months. Long trials which require expert medical testimony, accompanying illustrative exhibits, and a litany of witnesses come at a high cost. Both the plaintiff's and defendant's attorneys may spend tens of thousands of dollars trying a case in which the outcome is all but certain from the beginning.

Unnecessary litigation: As any lawyer can tell you, the courts are already overworked as it is. The last thing judges want to see are more lengthy, time-consuming trials to resolve issues that are hardly in dispute.

Of course, no one should have to admit liability if they truly feel they did no wrong. But it seems that these consent clauses often serve as little more than ways for vain physicians to purchase the right to maintain their pride and stubbornness, at the expense of everyone else involved, not least of all the patients they caused harm to in the first place.

About the Author

Andrew J. Barovick

Mr. Barovick is a graduate of Columbia College and Cardozo School of Law. He began his legal career at the Queens District Attorney’s Office, where he tried over 20 felonies to verdict, and argued an equal number of appeals before the Appellate Division, Second Department, the New York Court of Appeals and the United States Court of Appeals for the Second Circuit.


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