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Should Physicians Have the Right to Approve Insurance Settlements for Their Alleged Malpractice?

Published online by Cambridge University Press:  27 April 2021

James P. Connors  and
Marvin S. Fish
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Abstract

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Type
Health Law Point/Counterpoint
Information
Law, Medicine and Healthcare , Volume 9 , Issue 6 , October 1981 , pp. 30 - 42
Copyright
Copyright © American Society of Law, Medicine and Ethics 1981

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References

As promulgated by the American Bar Association in August 1969, as amended February 1979 (ABA. Chicago) (1979), and adopted by most states as part of their rules governing attorney conduct.Google Scholar
Hartford Fire Insurance u. Mnsrernak, 390 N.Y.S.2d 949 (App. Dw. 1977) (where insurer retains attorney for insureds in litigation. the insureds become clients of the attorney and deserving of their total fidelity. even where insurer pays the attorney’s fees); American Mutual Lability Insurance v. Superior Court for Sacramento County. 113 Cal. Rptr. 561 (Cal. App. 1974) (attorney retained by malpractice insurer to represent surgeon owed his primary loyalty to the surgeon. This litigation arose from the Nork case; here, the defendant physician agreed to the settlement which was negotiated by attorneys. and the insurer refused): Lyrick v. Walcom, 65 Cal. Rptr. 406 (Cal. App. 1968) (obligation owed by attorney to insured is same as that owed any client).Google Scholar
Code of Professional Responsibility, supra note 1. EC7-7.Google Scholar
Id.Google Scholar
Prate v. Freedman, 583 F.2d 42 (2d Cir. 1978) (attorney is agent of client and represents the client. who retains ultimate authoriw over the conduct of the litigation); Luis C. Forteza e Hijos v. Mills, 534 F.2d 415 (1st Cir. 1976) (attorney does not, by virtue of his employment, have authorization to settle a case, if this is challenged by the client); City of Der Plainer v. Scientific Machinery Movers. 292 N.E.2d 154 (111. App. 1972) (attorney employed to defend a suit has no authority to compromise, to give up any right of his client, or to consent to judgment against his client without the client’s express consent or authorization); Chiappetti v. Knapp. 314 N.E.2d 489 (III. App. 1974) (accord.).Google Scholar
The feeling regarding medical malpractice suits is so intense among members of the medical community that professional journals have begun to publish guidelines for the treatment of the patient deemed to be “suit prone.” See, e.g., Ritchey, F.J., ETHICS IN SCIENCE AND MEDICINE 737 (january 1980).Google Scholar
For an analysis of the separate problems associated with a nofault basis of medical malpractice, see No Fnulr liability, BRITISH MEDICAL JOURNAL 1:805 (April 1978); Bernstein, A.H., Compensable Even in No Fault, HOSPITALS 52 :48 (August 1978).Google Scholar