Should physicians be required to tell you that they are uninsured?

A recent New Jersey Supreme Court case will determine whether physicians have a duty to disclose a lack of malpractice coverage.

In New Jersey, hundreds are injured or killed by medical malpractice each year. The patients that survive the aftermath of the healthcare provider's mistakes are entitled to sue the negligent provider to collect financial compensation. Likewise, families of those killed by the malpractice can seek compensation in a wrongful death lawsuit.

Unfortunately, actually recovering the compensation is not always so easy. Even if the wronged party prevails in the medical malpractice lawsuit, this does not mean that adequate financial resources are available to pay the judgment.

In most cases, malpractice insurance pays the bulk of the judgment. Because of this fact, New Jersey law mandates that all physicians that practice in the state carry at least $1 million of malpractice coverage per person and $3 million per year. Physicians that are unable to obtain coverage, for whatever reason, must provide the State Board of Medical Examiners a letter of credit for at least $500,000.

Despite the law's requirements, some physicians in New Jersey practice without malpractice insurance. Sadly, if these physicians commit malpractice, it may mean that the injured patient would not be able to recover the compensation for medical bills, loss of income, pain and suffering, and other losses in a malpractice lawsuit. This harsh fact is the subject of a lawsuit currently before the New Jersey Supreme Court. In the case, the court will decide whether physicians have a duty to disclose a lack of malpractice coverage to the patient before treatment.

About the lawsuit

In the case, entitled Jarrell v. Kaul, a patient undergoing a spinal surgical procedure suffered injuries because of malpractice by Dr. Kaul. At the trial, the jury found Dr. Kaul liable for medical malpractice, awarding $938,000 in damages.

Later, it was discovered that Dr. Kaul's malpractice insurance specifically excluded spinal surgeries from coverage, rendering him unable to pay the judgment. Since the patient was not informed of this fact before the procedure, the patient's attorneys argued that Dr. Kaul had committed fraud, misrepresentation and breached his duty of informed consent, denying the patient the information necessary to make an informed decision on whether to allow Dr. Kaul to perform the procedure. Because of this withholding of information, it was argued that Dr. Kaul violated the Consumer Fraud Act and committed a battery.

The trial court and the appeals court both rejected these arguments. However, the New Jersey Supreme Court will have the final say. A decision is expected on this issue later this year.

Speak to an attorney

The court's decision potentially could have a significant effect on patients' rights. If the court finds in favor of the patient, it would likely create a new duty for physicians to reveal the existence (or lack thereof) of malpractice coverage before commencing treatment. Additionally, such a ruling would likely create a new cause of action for those that are unknowingly treated by uninsured physicians.

If you are injured because of a healthcare provider error, the experienced medical malpractice attorneys at Hobbie Corrigan & Bertucio, P.C. can work hard to secure the compensation you are entitled to by law.