Insurance company contributed to settlement without insured’s consent.
The plaintiff, age 55 years and an operator of heavy equipment, underwent a regular physical examination as required by his employer and was told that his prostate-specific antigen (PSA) level was abnormal. He was told to see his regular physician, the defendant general practitioner (GP).
The defendant GP tested the plaintiff and came up with abnormal results. The defendant GP assured the plaintiff that he did not have cancer and referred him to the defendant urologist for further testing. The defendant urologist came up with abnormal results but assured the plaintiff that he did not have cancer. The defendant urologist did not order follow-up biopsy testing but referred the plaintiff back to the defendant GP for further care and monitoring.
The defendant GP continued to monitor the plaintiff’s PSA level through testing for the next 2 years. During this time, the plaintiff’s PSA results continued to rise. At the plaintiff’s next employment physical, his results were higher than his prior screenings. The plaintiff was again referred to the defendant GP, who referred the plaintiff to a different urologist because the defendant urologist was no longer on the plaintiff’s insurance plan.
The new urologist ordered a PSA test, which showed results that were significantly abnormal. He immediately scheduled the plaintiff for a prostatectomy but, before the surgery could take place, it was determined that the plaintiff’s cancer had metastasized throughout his body and was now inoperable. The plaintiff was given 4 to 10 years to live rather than the 21 additional years he contended he could have expected had the cancerous prostate gland been removed before it metastasized.
The plaintiff contended that the defendant GP’s conduct was below the standard of care when he failed to again refer the plaintiff back to the defendant urologist when the plaintiff’s PSA test results continued to rise during the following 2 years.
The plaintiff alleged the defendant urologist failed to perform standard biopsy testing upon learning that the plaintiff’s PSA test results were abnormal. He alleged that biopsy would have revealed the plaintiff’s prostate cancer in time to have performed prostate removal, thereby curing the plaintiff of his cancer. The plaintiff alleged this conduct was below the standard of care for physicians specializing in urology.
The defendant GP claimed that he had a right to rely on the report of the defendant urologist and had no duty to inform the defendant urologist of the plaintiff’s rising PSA test results nor to refer the plaintiff back to the defendant urologist. The defendant urologist claimed that PSA testing, biopsies, and other testing procedures are unreliable predictors of prostate cancer and that even prostatectomy is not a foolproof cure for prostate cancer.
The plaintiff’s claimed injury was 3 years of undetected prostate cancer, which spread and metastasized throughout his body, reducing his life expectancy. As a result of the delayed diagnosis, the plaintiff had to undergo radiation and hormonal therapy treatments to slow the progress of the cancer. As a result of the diagnosis, the plaintiff was unable to return to work and would be on pain medications for the remainder of his life. The plaintiff claimed $141,000 in past medical costs, $370,000 in future medical costs, $30,000 in past lost earnings, and $330,000 in future lost earnings. The plaintiff’s wife sued for loss of consortium, claiming $250,000 for past pain and suffering, $250,000 in future pain and suffering, and $250,000 for a future wrongful death claim.
The parties engaged in pretrial settlement negotiations. The plaintiff first demanded $1.6 million. The defendant GP refused to make an offer. The defendant urologist refused to make an offer without a contribution by the GP. Negotiations continued. Although the defendant GP never consented to settlement, the parties eventually settled for $1,004,500. The defendant GP’s insurance company contributed $29,000, the maximum amount allowed under the policy without the insured’s consent, and the defendant urologist’s insurance company contributed the remaining $975,500.
LEGAL PERSPECTIVE: Under most types of liability insurance, the insurance company has the contractual right to settle or defend the case as it sees fit. The insured normally will have an opportunity to provide input, but the insurance company typically has no obligation to get the insured’s consent or approval. A common exception to this involves professional liability policies, such as medical malpractice or architects’ errors and omissions coverage, under which consent of the insured usually is required for any settlement. In this case, the policy had an exception, which allowed the insurance company to settle up to a certain amount without the insured’s consent.