The prevailing party contract is not the only contract that can protect a doctor in medical malpractice litigation. There is also the doctor-defense counsel contract.

Because of the risk of litigation, doctors often have a contract with a medical malpractice insurance carrier. The carrier offers to cover litigation costs in exchange for premiums, limits on liability, and other terms of coverage. The insurance company is then obligated to appoint and pay for an attorney to defend the doctor.

This contract typically includes a “cooperation” clause requiring the doctor to work with the insurance carrier and the attorney it appoints in their defense plans. Essentially, there is an unnamed third party to this agreement – the attorney.

When a doctor is served with a complaint, they notify the medical malpractice insurance company. The company then appoints an attorney, who likely already has a contract with the carrier to offer representation to the insurance company for the defense of its clients. The carrier accepts this offer in exchange for a retainer and other compensation, and sets terms for how it expects the lawyer to defend its clients.

The doctor can be defended unconditionally or with a reservation of rights. Most carriers defend with a reservation of rights, which means the carrier can deny the rights of the doctor if the doctor’s interests do not align with those of the carrier. This contract puts the doctor in a precarious position because the attorney has a conflict of interest – they have two clients: the doctor and the insurance company.

If claimants who sue doctors have contracts with their attorneys, why shouldn’t doctors who are being sued have contracts with their attorneys, especially when the doctor’s attorney is appointed by the insurance carrier?

A lawyer may argue that an oral contract exists with the doctor. This is true, but there is also a written contract between this lawyer and the insurance company. An oral contract is contestable, but a written contract is not.

What if the doctor wants a written contract with the lawyer?

The contract stipulates:

In regards to the medical malpractice case in question, the doctor agrees to fully cooperate with defense counsel by providing a summary of the medical intervention in question that demonstrates the lack of merit in this case. This summary also tests the quality of evidence in this hypothesis with a level of significance of 0.05, corresponding to a 95% chance that this hypothesis is correct.

It is expected that this hypothesis will be used to assist in the defense of this case. It is understood that the burden of proof is preponderance of evidence. It is also understood that the quality of evidence, specifically a level of significance of 0.05, as presented in the hypothesis, does not conflict with preponderance of evidence. This same quality of evidence will be reflected in the denials stated in the answer to the complaint and in the certificate of qualified expert (CQE) prepared by the medical expert.

In consideration, the defendant doctor has no hesitation to accept representation by this defense counsel and no objection to appropriate compensation.

Upon acceptance, defense counsel agrees to transmit this summary to the medical malpractice insurance carrier that appointed defense counsel and to the medical expert selected by defense counsel and approved by the medical malpractice carrier.

Assuming all conditions regarding preponderance of evidence and quality of evidence are accurate, counsel will make a sincere effort to base this physician’s defense on the aforementioned hypothesis. In these circumstances, the quality of evidence, specifically a level of significance of 0.05, will be reflected in the denials and in the certificate of qualified expert.

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For this consideration, defense counsel agrees to represent this doctor under the previously agreed upon terms of compensation.

It goes without saying that any malpractice attorney and any medical expert should understand the concept of preponderance of evidence, the meaning of a level of significance of 0.05, and the concept of a type I error. The terms of this contract are entirely reasonable and completely compatible with all other existing contracts between the doctor and the insurance carrier and between the lawyer and the insurance carrier. Additionally, as a written contract, it is compatible with the oral contract that the attorney claims already exists.

If the doctor believes there is a need for a contract, there is a need for a contract. A contract is not a contract until it is accepted. If the attorney rejects these terms, it is because the attorney understands that they have an irreconcilable conflict of interest between the doctor and the insurance company. Under these circumstances, the insurance company is obligated to provide the doctor with another attorney.

To be legal and binding, contracts must be made in good faith and all parties must agree to an offer made by one party and accepted by another party. Something of value must be exchanged for something else of value. In this case, the items of value to be exchanged are: 1) the doctor’s pledge to fully cooperate and to accept representation by the lawyer without hesitation, even though the lawyer has a contract with the malpractice carrier and is directly paid by it, and 2) the lawyer’s pledge to be an unquestioned, zealous advocate for the doctor in a malpractice lawsuit. There is no coercion and all parties are competent and have the capacity to accept the terms. If a lawyer does not want a contract, another lawyer can be provided. The doctor-defense counsel contract fulfills the usual terms of contracts.

Howard Smith is an obstetrics-gynecology physician.