Pursuing a successful medical malpractice claim in Pennsylvania is both challenging and expensive. Important facts are often unknown, the medicine can be difficult and the standard of care unclear. The risks of pursuing a claim are further compounded by the high costs of retaining and paying for experts and the uncertain and unpredictable odds of winning a jury verdict. Because of these challenges, during the course of litigation, plaintiffs attorneys logically focus on proving liability and establishing damages.
Rarely, however, do attorneys investigate with the same focus or thoroughness whether their client will be able to collect an award if he or she wins. Typically, attorneys accept defense counsel’s representation of the extent of the primary and excess insurance policies, without independent verification. This is a mistake. It is an unfortunate reality that, after considerable time and resources have been spent making out a strong liability and damages case, an excess malpractice policy identified early in discovery may no longer be available for settlement or to satisfy a judgment, because the policy has already been paid down on another claim. Under a shared-limit policy, the amount of coverage available can be significantly eroded or even eliminated during the course of litigation as the defendant and its carrier, unbeknownst to counsel, settle other pending claims or lawsuits. Thus, from the inception of litigation, it is crucial for plaintiffs counsel to identify not just the amount of insurance coverage available, but whether the coverage can be reduced or eliminated by other third-party claims.
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