Litigation Education: Settlement vs. Defend—Understanding the Options

Foreword by Kristi Wright 
Sarah Macdissi, Senior Claims Attorney at Curi, will share insights into the important factors that influence the decision to either settle or defend a legal claim or lawsuit.

When faced with a claim or lawsuit, one of the key decisions to make is whether to settle or defend the claim or lawsuit. Understanding the implications of both options is important. At Curi, we are here to guide you through the process.

Let’s first break down the key differences between "settlement" and "defend," and explore how these two options work in the context of claims and lawsuits.

What does it mean to Settle?

A settlement occurs when the parties involved in a claim or lawsuit (you, the insured, and the claimant or plaintiff) agree to resolve the dispute outside of a courtroom. In the context of insurance, this typically means the insurer will pay a certain amount of money to the claimant or plaintiff, in exchange for dismissal of the lawsuit or claim.

Key aspects of a settlement include:

• Financial Compensation: The insurer pays a negotiated sum, which may be less than the amount originally claimed, but enough to resolve the dispute and prevent further litigation.
• No Admission of Fault: Settling does not mean an admission of liability, but it does mean the parties agree to resolve the claim without contesting it in court.
• Confidentiality and Non-Disparagement: A standard provision is confidentiality and the agreement that the parties will not talk negatively about one another following the settlement.
• Speed and Certainty: Settling a claim can be faster than a trial, providing both parties with more certainty. You avoid the unpredictability of a courtroom decision, and the claimant gets immediate compensation.
• Consent to settle clauses: many MPL policies, including Curi, have consent to settle clauses. In some policies, a provider may hold the consent and in others, it is held by the designee of the group. Whatever the case may be, Curi will obtain consent from the appropriate person prior to resolving the case.
• Reporting to the Board of Medicine and National Practitioner Data Bank: Most states require reporting settlements and judgments to the Board of Medicine. Federal law requires reporting to the National Practitioner Data Bank. These settlements will subsequently be reported on credentialing applications, so the decision to settle should not be entered into lightly.

What does it mean to Defend?

To defend a claim or lawsuit means that you, as the insured, with the assistance of the insurer, challenge the allegations in court and defend them through trial if necessary.

Key aspects of defending a claim or lawsuit include:

• Retention of legal counsel: Curi will retain a lawyer on your behalf to defend your case in court.
• Participation in Legal Proceedings: Defending a claim or lawsuit requires your active participation in the legal process, in partnership with your assigned attorney and your Curi claims consultant. Your participation may include engaging in the pre-lawsuit discovery process, assisting with written discovery, and participating in depositions. Curi will also ask that you be present at the trial as needed.
• Collaboration: The decisions in the litigation process are made in partnership with your defense attorney and your assigned Curi claims consultant.

Factors That Influence the Decision: Settlement vs. Defend

The decision between settlement and defense ultimately depends on a variety of factors. However, two primary considerations that drive the decision-making process are Curi’s commitment to the defense of good medicine and the protection against unreasonable settlement demands.

Defending Good Medicine:

Curi supports its insureds. One way we do this is by defending your medical care and retaining expert witnesses in defense of claims or lawsuits. An expert witness is a medical professional in the same or similar field, who has agreed to testify and offer opinions regarding the applicable standard of care. Simply put, if you stand behind your medical care and we have expert testimony that supports the care provided, Curi will stand with you.

On the other hand, if a claimant has a strong case or Curi has been unable to find expert support in defense of the claim or lawsuit, settlement may be considered.

Defense Against Unreasonable Settlement Demands:

If a claimant makes an unreasonably high settlement demand, Curi may opt to continue defending the case.

How Can Curi Help?

As your insurance provider, Curi is here to support you through the entire process. Our experienced claims consultants and legal partners will provide you with guidance on whether settlement or defense is the best decision for your specific case. Here’s how we assist:

• Full Evaluation of the Claim or Lawsuit: We will review the facts and circumstances surrounding the claim or lawsuit, in partnership with legal counsel, to assess the strength of the case and make an informed decision.
• Negotiation: If a settlement is in the best interest of all parties, we will negotiate on your behalf to reach a resolution.
• Legal Defense: If defending the case is the best path, we will ensure a solid defense strategy, including retaining experts to testify on your behalf.
• Trial Resources: Curi utilizes many resources to assist you during the litigation process, including vetting and retaining defense attorneys, expert witnesses, trial consultants, and support throughout the case duration.  

Whether you are facing a claim or a lawsuit, the decision to settle or defend is a big one. If after reviewing all relevant information, we recommend that we attempt to settle the case, your claims consultant will discuss our recommendation with you and request that the consent holder – be it you or the designee under your policy—consent to settle.

Alternatively, we may recommend your case be defended through trial. In that event, it’s important for you to stand behind your care and participate in your defense. Remember, your Curi Claims team is here to help.

For more insights into the litigation process, we suggest listening to Dr. Gita Pensa’s podcast: Doctors and Litigation: The “L” Word. For additional information on this subject, watch video nine: Factors That Inform the Decision to Settle or Defend the Case on curi.com/litigation-education.

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