Steps ED physicians can take without a lawyer to protect their personal savings from an excess-limits verdict

Asset-protection planning can be the determinative factor in whether you and your family will live in the best or worst of times financially. If you doubt the importance of navigating this area where law, insurance, investing, and medicine intersect, please consider the following tale.

New Year’s Eve, Dec. 31, 2013

Two emergency physicians walk into a bar to attend their department’s New Year’s Eve party. Dr. Birkenstock (Dr. B) and Dr. Stiletto (Dr. S.) are both nearing retirement after working together “in the pit” for 35 years. They have both lived frugally and invested wisely. They have each built up a very nice retirement nest egg of $2 million. They both feel financially set for life.

The lawsuit concerns a woman who was a “frequent flyer” in their emergency department three years ago. She was pregnant with twins, and she would present on a weekly basis with “pseudoseizures.” At six months of gestation, she had a “real” seizure with a prolonged period of hypoxia. She barely survived and was left with severe hypoxic encephalopathy. The twins were born with profound neurological deficits. As a result, the mother and twins will require a lifetime of expensive medical care. Experts for the plaintiffs allege that the patient was incorrectly diagnosed with “pseudoseizures,” and that this misdiagnosis led to the injuries and was a breach of the standard of care. But for the misdiagnosis, the mother and twins would have been fine.

The Trial, July 2014

All the other defendants (the obstetricians, neurologists, residents in various disciplines, nurses, physician assistants, nurse practitioners, neonatologists, and the hospital) have settled and are out of the case. The only defendants left when it’s time for the trial are Drs. B and S, who decide to trust their fate to a jury. Both believe the standard of care was met, and they refuse to settle. Their attorneys have impeccable expert witnesses to confirm that their treatment was within the standard of care and there are no charting deficiencies.

The trial does not go well for the defendants. The judge allows the mother and the twins to be in the courtroom, and the jury wants to do something to help them. Life-care experts emphasize the millions of dollars needed to care for them for the rest of their lives. The jury enters a huge verdict, far in excess of the doctors’ combined malpractice insurance limits. The defendants’ appeals are ultimately unsuccessful.

New Year’s Eve, Dec. 31, 2014

Drs. B and S are at their department’s annual New Year’s Eve party, but their minds are elsewhere. The collection efforts of the plaintiff’s attorney have been relentless. The judgment was only partially satisfied by the malpractice insurance, and the plaintiff’s attorney has an obligation to his clients to collect the outstanding balance from the defendant physicians.