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Medical Malpractice


hole punched in 90 days. What’s the down side from your perspective? Many times case reserves and perceptions are formulated early on in a case by the insurers, and it takes an Act of God to alter those impressions and estimates. You wonder why – other than the cynical motive of ‘time is money’ – you can not get resolution of a case until right before trial in most instances? Defense lawyers are playing catch-up for most of the early part of a case. Sometimes early is unfortunately defined as being right-up to the courthouse steps.


At a recent conference of the Maryland Association for


Justice (MAJ), there was a fair amount of discussion about cooperation between the plaintiff and defense lawyers. Topics ranged from providing information about your client’s case (e.g. damages) to working with defense counsel to establish critical lien information – particularly in the context of Medicare and Medicaid liens. While the latter makes common sense and should be the new approach to cooperation, the former is not always so obvious to plaintiff counsel. You must keep in mind that the authority to settle


cases does not come from a hidden vault just waiting to be exhausted by settlements. Insurers, whether third party insurers or self-insurers, are required by law and regulations


to establish reserves on their cases. While no lawyer fully understands the system employed by insurers when setting their reserves and while there probably is no uniform method for setting reserves, the basic concept of reserving is critical for plaintiff counsel to understand. Simply stated, a reserve is an amount of money set aside


for a particular claim. Te amount of the reserve is essentially a prediction of what that claim will likely be worth in real dollars at the time of resolution. As you can see, a reserve would, therefore, take into account special damages (wage loss, medical expenses, household services, etc.) both past and future. Tere is also the component of pain and suffering, loss of consortium, solatium in Wrongful Death actions – the typical ‘non-economic’ damages. Additionally, a key component in setting a reserve is an assessment of the relative strengths and weaknesses of a given claim. Tis typically includes the jurisdiction where the action is being brought or will be brought, the ‘attractiveness’ of the claimant, the skill level of the plaintiff ’s attorney, the existence of co-defendants and their relative risk-sharing for the loss, and so on. Reserves are critical to the orderly operation of any insurer.


Payments ‘over reserve’ are to be avoided since they affect the overall profitability of an insurer or self-insured institution.


Legal Nurse Consulting The NMAS Group


Providing over 30 years of focused, cost-effective medical litigation support


• On-site Physician support/access • Single and multi-claimant litigation • Personal injury


• Worker’s compensation • Long Term Care





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● Merit reviews ●


Medical /Nursing malpractice Toxic Tort


Medication issues Wrongful Death


Ph: 301-519-0300 Legalnurse@nmas.com


Making Sense out of Complex Medical Issues The National Medical Advisory Services Group www.nmas.com


Trial Reporter / Summer 2010 45


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