Maloney: Strategize now for future litigation

KOLOA, Hawaii — Because the odds are that if a practicing ophthalmologist has not been sued, he or she will be, ophthalmologists should learn how to best manage their defense, a speaker here said.

Here at the Hawaiian Eye 2007 meeting, Robert K. Maloney, MD, gave tips for handling lawsuits.

According to Dr. Maloney, the average ophthalmologist is sued once every 6 years.

Once informed of a lawsuit, the first thing an ophthalmologist should do is contact their insurance company. Surgeons must realize that the insurance company is only partly on their side, Dr. Maloney said.

"This is due to the law of diminishing returns," Dr. Maloney said. "Spending a lot on your defense only increases your chances of winning by a little and is not cost effective." But for the surgeon, "it's not your money and a loss follows you forever." Dr. Maloney also said the lawyer that the insurance company appoints for your case is not your friend either.

"Insurance companies have a panel of lawyers, just like an HMO. The lawyer's incentive is to defend you fast and cheap and stay on the panel," he said.

The other problem with insurance company-appointed lawyers, according to Dr. Maloney, is that compared with other lawyers their hourly rate is much lower than their peers in private law firms. This leads to two more problems.

"Everything possible is delegated to junior associates," Dr. Maloney said, and because of the low pay the junior associates are not the best qualified.

To battle this problem, Dr. Maloney recommended that a surgeon pick his or her own lawyer and demand that the insurance company pays for that lawyer. If the surgeon cannot do this, he or she should hire a litigator to oversee the insurance company's lawyer.

This will help eliminate the corners that are often cut and undermine your defense, Dr. Maloney said.

Examples of cutting corners are not retaining an expert witness or defense strategy early enough in the process, not prepping witnesses for their depositions and testimony, and not pursuing leads or witnesses who will undercut plaintiffs' claims.