Settling with Dental Malpractice Insurance Co. - Gross Negligence

[MayeM]

Jurisdiction

South Dakota

I have a question that involves settling a dental malpractice claim with an insurance company when the claim involves gross negligence.

It's my understanding that most dental malpractice policies either do not cover gross negligence or offer extended coverage for gross negligence. My question is this... If a policy excludes gross negligence, does this mean the insurance company will pay damages, but not punitive damages?

Also, would it be out of line for me to ask the insurance company if gross negligence is covered?

 

[army judge]

My question is this... If a policy excludes gross negligence, does this mean the insurance company will pay damages, but not punitive damages?

A stranger, far removed from your issue, knows less than you know about your case.

If you believe your case has merits, discuss your problem with three local medical/dental malpractice attorneys in your county.

It will be helpful to take "copies" of all the documents you possess related to your case.

Good luck.

 

[adjusterjack]

It's my understanding that most dental malpractice policies either do not cover gross negligence or offer extended coverage for gross negligence.

I doubt that you have ever read a malpractice policy so where are you getting your understanding from? Never mind, that's rhetorical.

Malpractice policies don't distinguish between negligence or gross negligence. The insuring agreement between the insurance company and its insured is that the company will pay, on behalf of the insured, all sums for which the insured becomes legally liable.

Legal liability is determined by a judge or a jury. Until then it's a matter of negotiation between a claimant and the dentist's insurance company.

If you want a gazillion dollars and think you can justify it, then ask for it. You'll either get it or you won't. You'll either settle or you'll sue.

Questioning the coverage isn't going to change what your claim is worth or what the insurance company pays. But don't feel too bad. Lots of people make the same mistake.

 

[zddoodah]

If a policy excludes gross negligence, does this mean the insurance company will pay damages, but not punitive damages?

No normal insurance covers punitive damages.

Also, would it be out of line for me to ask the insurance company if gross negligence is covered?

"Out of line" isn't a legal issue. If you have a malpractice claim against a dentist and are in communication with the carrier, you should request a copy of the policy.

 

[Zigner]

"Out of line" isn't a legal issue. If you have a malpractice claim against a dentist and are in communication with the carrier, you should request a copy of the policy.

Is there any legal requirement for them to turn this over? If yes, at what point does that legal requirement become effective?

 

[adjusterjack]

Is there any legal requirement for them to turn this over?

None that I know of. And any reference to insurance is inadmissible at trial.

Besides, this isn't car insurance. Malpractice insurance is written with limits of at least $500,000, more often $1,000,000 with $1,000,000 increments above that.

Getting a copy of the policy isn't going to make any difference to the OP's claim. I suspect that she's read or heard the usual misinformation about insurance claims.

 

[zddoodah]

Is there any legal requirement for them to turn this over? If yes, at what point does that legal requirement become effective?

I can't speak with specificity about South Dakota, but I'm not aware of any jurisdiction that would make it mandatory unless sought via discovery. While the policy isn't admissible it absolutely is discoverable.

Getting a copy of the policy isn't going to make any difference to the OP's claim

It might in a state that makes a distinction between ordinary and gross negligence.

 

[MayeM]

I doubt that you have ever read a malpractice policy so where are you getting your understanding from? Never mind, that's rhetorical.

Malpractice policies don't distinguish between negligence or gross negligence. The insuring agreement between the insurance company and its insured is that the company will pay, on behalf of the insured, all sums for which the insured becomes legally liable.

Legal liability is determined by a judge or a jury. Until then it's a matter of negotiation between a claimant and the dentist's insurance company.

If you want a gazillion dollars and think you can justify it, then ask for it. You'll either get it or you won't. You'll either settle or you'll sue.

Questioning the coverage isn't going to change what your claim is worth or what the insurance company pays. But don't feel too bad. Lots of people make the same mistake.

I visited the websites of many insurance companies that offer malpractice coverage. According to the coverage information, most policies don't cover gross negligence. Others cover gross negligence if extended coverage is purchased.

I'm not looking for a gazillion dollars. I just want to know if I have a little more negotiating leverage.

Questioning the coverage will absolutely change what my claim is worth. A negotiation can't include something that's not covered by the policy.

 

[MayeM]

No normal insurance covers punitive damages.

What I don't completely understand is whether a malpractice policy that excludes gross negligence will pay damages with the exception of punitive damages... or, if act of malpractice was found to have involved gross negligence, would the insurance company negate the entire claim.

Thank you.

 

[adjusterjack]

Well, I guess you know best. Good luck.

 

[MayeM]

Is there any legal requirement for them to turn this over? If yes, at what point does that legal requirement become effective?

As a non-attorney, I would assume an insurance company may not turn over the entire policy until the discovery phase - if a court case is ever filed. If I had specific questions about the policy's coverage, they may not answer them if the feel it would give me more leverage.

 

[MayeM]

Getting a copy of the policy isn't going to make any difference to the OP's claim. I suspect that she's read or heard the usual misinformation about insurance claims.

This is the first dental/medical malpractice claim I've ever been involved with. Although my patient records show malpractice (patient abandonment) occurred, I'm expecting an offer for no more than what I paid the dentist. That's how realistic I'm being.

If you don't mind, what's the usual misinformation about insurance claims?

 

[army judge]

If you don't mind, what's the usual misinformation about insurance claims?

Why not invest a couple hours of your time and discuss this in person with two or three local medical malpractice attorneys in the city or county where you reside?

Did you know that when a person is represented by an attorney the settlement offer is between 250-300% HIGHER than a person who does battle with an insurance company alone?

Most reputable attorneys will charge a prospective client NOTHING to understand the potential client's needs and concerns.

 

[zddoodah]

As a non-attorney, I would assume an insurance company may not turn over the entire policy until the discovery phase - if a court case is ever filed.

"May not" implies some legal restriction. As I previously mentioned, I don't know any specifics about South Dakota, but I doubt any state's laws impose such a restriction. Whether an insurer will choose, voluntarily, to provide a copy of a policy to a third-party claimant is, of course, a very different question.