Generally, when a defendant physician is accused of committing medical malpractice, the physician will refute the allegations throughout the process of litigation but will participate in defense of the plaintiff’s claims. A plaintiff in a medical malpractice case may seemingly be left with no recourse, however, if the defendant physician leaves the country and refuses to participate in the case. Recently, a federal appellate court discussed whether the insurer of a physician accused of medical malpractice can be held liable for damages assessed against the physician after the physician fled the country. If you were harmed by medical malpractice, it is important to retain an attorney who will fight diligently to protect your interests.
Facts of the Case
Allegedly, the defendant doctor treated the plaintiff’s decedent for shortness of breath and chest pain. While the defendant administered a stress test and EKG to the decedent and prescribed him a beta-blocker, the defendant did not advise the decedent to seek any other medical attention or visit a cardiologist. The decedent died due to a cardiac event eight days after he visited the defendant. The plaintiff subsequently advised the defendant’s malpractice insurer that she intended to file a medical malpractice lawsuit against the defendant, and provided the insurer with a copy of the complaint. The insurer retained an attorney to represent the defendant, but he was unable to locate the defendant, who moved to Pakistan and had no plans to return.
It is reported that the counsel assigned to represent the defendant believed he was ethically barred from doing so, due to the lack of the defendant’s consent to the representation, and did not answer the plaintiff’s complaint or participate in discovery. The plaintiff subsequently entered a default judgment against the defendant, and instituted a declaratory judgment action against the insurer, arguing the insurer was liable for the plaintiff’s damages. A trial was held, after which the court found in favor of the plaintiff. The insurer appealed.
Assessing Liability Against an Absent Defendant
On appeal, the court rejected the argument that defense counsel could not appear on behalf of the defendant without the defendant’s express consent. Specifically, the court noted that the subject policy contained an advance consent provision that allowed an attorney to represent both the interests of the insurer and insured, to allow the insurer to protect its interests in the event the insured refuses to participate.
Further, the court was not persuaded by the argument from the defendant’s attorney that he would not have been able to defend the case without participation from the defendant. Specifically, the court noted that during the trial on the declaratory judgment issue, both parties presented evidence regarding the standard of care and whether the defendant’s acts constituted a deviation from the standard, despite the fact the defendant could not be located. Thus, the court affirmed the trial court ruling.
Meet with a Capable Maryland Medical Malpractice Attorney
If you suffered harm due to insufficient medical care, you may be able to recover damages and should meet with a capable Maryland medical malpractice attorney to discuss your case. The knowledgeable attorneys of Arfaa Law Group will aggressively advocate in your favor, to provide you with a strong chance of a successful result. We can be reached via the online form or by calling (410) 889-1850 to set up a confidential and free conference.