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Is It Worth It to Sue a Doctor With No Malpractice Insurance?

Stethoscope, Gavel and MoneyIn most states, doctors are required to maintain medical malpractice insurance so that if they are sued, their practice will not fail with the weight of a judgment assessed against them, and they are able to pay compensation to those they may have wronged. However, if a doctor does not have malpractice insurance, it can be extremely hard to collect. There are pros and cons to bringing suit regardless of the doctor’s ability to pay.

Is Malpractice Insurance Required?

In some states, malpractice insurance is not required, though there must be alternative provisions to handle a lawsuit in place. California law states that not all doctors are required to carry malpractice insurance, but those in an “outpatient surgery setting” must. Generally, all procedures performed “outside of a general acute care hospital” must be underwritten, so to speak, either by liability insurance or by an inter-indemnity trust (a trust set up to defray costs associated with malpractice litigation). Failure to carry liability protection when it is required constitutes “unprofessional conduct,” according to the Medical Board of California (MBC). Be advised that neither the Board nor the courts have seen fit to specifically define “unprofessional conduct,” instead deciding on a case-by-case basis which actions merit discipline.

California law does also require that any settlement or jury award handed down against a physician who does not have liability protection must be reported to the relevant licensing authority - in most cases, the MBC. While most malpractice cases do not result in the loss of one’s license all on their own, they can play a role in a larger pattern.

Collecting From a Non-Insured Doctor

If you happen to have cause to bring suit against a doctor who carries no liability coverage of any kind (in violation of state law or not), you may have little recourse. When a defendant is judgment proof (that is, they either have no assets or their assets are exempt from seizure), however, many people look for another defendant to bring suit against. In the case of a doctor, it is plausible that they might have hospital admitting privileges, for example; in many cases, it may be possible to sue the hospital as a co-defendant, or under a theory of respondeat superior (also known as vicarious liability; if a doctor is considered an employee of the hospital, the hospital may be liable under more than one cause of action).

One caveat that potential plaintiffs in California should be aware of is that Cal. Civ. Code §3333.2(b), also known as the Medical Injury Compensation Reform Act (MICRA), sets the upper limit of non-economic damages receivable in medical malpractice at $250,000. Actual or economic damages (for example, the cost of hiring care workers or purchasing medical equipment needed after an injury) are set by a jury, but non-economic damages, whichever causes they may have, have a hard maximum limit.

Seek Experienced Assistance

Deciding whether or not to bring suit against a doctor who carries no liability insurance can be difficult, and very often, a professional’s opinion is very valuable. The dedicated San Jose medical malpractice attorneys at Corsiglia, McMahon, & Allard, L.L.P. understand that the law can be complex and frustrating where one might think it simple and easy. We will do our best to help you through the process and answer any questions you might have. Contact our office today at (408) 289-1417 to schedule an initial appointment. We serve San Jose, the Bay Area, and the counties of Alameda, Monterey, San Benito, Santa Clara, and San Mateo.

Client Reviews
My experience with Attorney Brad Corsiglia during my recent medical malpractice case was nothing short of amazing given the very stressful circumstances. I was fortunate to find Brad highly recommended from a mutual contact and from the very beginning of the process, Brad was truly engaged and knowledgeable in understanding my case and providing input on what avenues were available to me. Michelle M.