What to Do After Reporting a Malpractice Claim

This list sets out some of the kinds of activity that may be included within the obligation to cooperate:

• Be prepared to provide a copy of your entire file to the insurance carrier and/or counsel retained to defend you.  
• Ask to be copied by defense counsel with his or her invoices for legal services and costs. This will help in staying apprised of what is going on, but it is especially important if you have a declining limits policy, because as they are incurred, your defense expenses reduce your available indemnification dollars.
• Do not keep correspondence, notes, or memoranda regarding the claim in the underlying client file. Invariably the claimant will request a copy of his or her entire file, and your thoughts on your liability, your defense, or the potential damages should not be mixed in with your file on the client's representation.
• During the investigation, defense, and settlement of your claim, make yourself available to your claims representative and your defense lawyer.  Help them help you through this difficult process. 
• When the claim is resolved and the claim file closed, communicate with your carrier in order to find out how much was spent on defense and indemnification. Those figures impact your aggregate limit availability for the remainder of that policy period; they may also impact any premium surcharge or claims surcharge made by your carrier for the next policy.
• Once the claim has concluded, take the time to extract, and thereby benefit from, the costly lessons that can be learned.  What was the error that led to the claim?  What was the underlying cause of the error? Was it a system failure, such as a docketing error, or is it possibly symptomatic of a larger problem?  Frequently, attorney errors arise out of substance abuse, dependency, overworking, burnout, or depression. Law firms should take care to question whether any such issues contributed to the claim. What procedures, safeguards, or other mechanisms can be implemented to prevent a recurrence of the problem(s) leading to the claim?

Finally, when reporting the claim to your carrier on renewal or on an application for a new carrier, address the causes of the claim head on.  Demonstrate that the firm has addressed the cause for the claim and has taken appropriate measures to prevent a recurrence. 

From The Essential Formbook: Comprehensive Management Tools for Lawyers, Volume IV

by Gary A. Munneke and Anthony E. Davis
ABA Law Practice Management Section

Click here to learn more or purchase this book

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