The reformed litigator Featured

8:00pm EDT August 26, 2007

With over 90 percent of all medical negligence claims ultimately being settled, why aren’t most claims quickly resolved? Why do parties go to litigation that may drag on for years? A good share of the problem exists with the attitude of the parties involved.

“As a practicing attorney, I believed that professional liability insurers wanted their defense attorneys to delay cases for as long as possible,” says Robert Blasio, president and CEO of Western Litigation Inc. “Only years later, after I had left private practice and entered the insurance industry, did I learn that virtually all for-profit professional liability insurers want their defense attorneys to resolve cases as quickly as possible, thereby allowing those insurers to take down reserves and increase capital and surplus for the writing of new business.”

Smart Business talked with Blasio for his insights on how attitudes can be changed to more expeditiously settle health care claims.

What is the first step to speeding up the settlement process?

The first step is to realize that all parties want to accomplish the same objective. In most cases, the claimants want to know why the adverse outcome happened, what will be done to prevent future occurrences and what compensation they are going to receive for their problem. They want this done sooner rather than later. Most health care providers want to get the matter behind them and get back to the business of providing health care. The insurers want to mitigate their liability and settle as soon as possible so as not to tie up funds that they could use to write new business. All sides are essentially of the same mind.

If the principals involved are all looking for a quick resolution, why isn’t that happening?

Unfortunately, too many attorneys have forgotten that they are supposed to be ‘counselors at law.’ With hourly billing, or contingency fees, it has become too tempting to look at the bottom line for the attorney or law firm and stretch things out rather than look for what is quickest and best for the litigants.

Is it necessary for a case to go into litigation before a settlement is reached?

No. Because of the time and costs, litigation is really a lose-lose proposition. Although there is inherently more emotion involved in the health care arena because of the professional reputation of the defendants, it remains important to impartially evaluate each matter and to make an intellectually honest decision before resorting to litigation.

What are the steps to follow to attempt to resolve the situation without litigation?

The overall situation must first be evaluated. The patient, the health care provider and the insurance company must all be transparent and share information. When everything can be placed on the table at the beginning, there is a much better chance that there can be a quick resolution that will satisfy all parties. When a matter enters litigation, there are automatic roadblocks that prevent this kind of upfront discussion. A case drags on, expenses increase for everyone and, then, just as the case is finally ready for trial, the parties finally see the perils of trial and begin discussing a resolution. It is also important to make each party understand completely the dangers of not settling at the outset of each case.

Do these processes apply only to claims in the health care field?

Actually, no. This approach is applicable in any situation where a person or group feels that they have been hurt in some way by someone else’s actions. The sooner everyone can move on, the better off they are all going to be.

What are the roadblocks that have prevented quicker settlements?

People may not recognize that they have a choice. Once cases enter litigation, the lawyers may not work to satisfy their clients’ true objectives. Also, the court system and its discovery rules prevent sharing of information. Lastly, sometimes simple greed by one or more of the parties creates an obstacle.

Will a quick resolution always be the best?

There will always be cases that need to be tried. However, the general rank and file could be settled very expeditiously to the satisfaction of all. Even if a case must be tried, it is still a good idea for all parties to have as much information upfront, thereby allowing them viable options to the litigation process.

ROBERT BLASIO is president and CEO of Houston-based Western Litigation Inc., a division of Gallagher Healthcare Insurance Services. Reach him at (713) 935-8820 or by e-mail at Robert_Blasio@ajg.com.