When a doctor is guilty of medical malpractice, it is his or her insurance company who pays the compensation: it’s why medical malpractice insurance exists. So when a doctor makes a fatal error and admits to it, it seems reasonable to assume that the insurance company would compensate the victim’s family.

Unless you’re the sons of Caroline Carcerano; then you’re told even though the surgeon admitted that he and his team made a mistake during your mother’s procedure, no one has been negligent at all.

What happened

OutpatientSurgery.net reports that in November of last year, Caroline Carcerano underwent a routine pain pump surgery. During the procedure the surgeon, Dr. Steven Hwang, requested a particular type of surgical dye. The nurse gave him another type of dye (one that could not be used in the way Dr. Hwang needed to use it) claiming that the pharmacist gave it to her because the hospital didn’t carry the type Dr. Hwang wanted. The dye used, however, has a warning notice not to inject it into the spine – and that is exactly where Dr. Hwang needed the dye to be. A day after the surgery, Caroline Carcerano died.

Dr. Hwang, in keeping with a “pilot program [put into effect in six Massachusetts hospitals] to offer patients harmed by medical errors a prompt apology and early financial settlements” admitted fault and apologized to the family, saying that he used the wrong dye, and that he didn’t look at the tube carefully; the nurse gave it to him, and he used it.

How the insurance company responded

At first, the sons received letters from the hospital’s insurer claiming no negligence on behalf of the medical team. In February, Ms. Carcerano’s sons sued 12 surgeons, nurses and pharmacists, and named the hospital in the suit as well.

The insurance company’s actions are reprehensible – especially considering the doctor admitted fault, and there is documented evidence of medical malpractice. But this is what insurance companies do: they either deny fault completely, or offer settlements that are in their best interests, not the best interests of the patients. The response to the Carcerano family is preposterous, but sadly it’s not uncommon.

Massachusetts has a non-economic damage cap of $500,000, which means even though there is indisputable evidence that Dr. Hwang and his team’s mistakes lead to the death of Caroline Carcerano, the most her sons can collect is half a million dollars. By denying negligence and forcing the family to file suit, the substantial expenses of litigation will unfortunately be paid from the verdict or settlement.  In this case, despite the obvious negligence, only after suit was filed and substantial expenses incurred did the insurance carrier offer a settlement.

This is not uncommon.  When I was a young lawyer, a gentleman came to my office with x-rays of the wrong size screws in the bones of his arm.  After eight weeks of excruciating pain and being told by his doctor that it was normal, the man went to another orthopedist.  The second orthopedist removed the screws, replaced them with correct screws and the pain instantaneously went away.  For medical malpractice cases, it was a modest injury (2 months of excruciating pain and a full recovery plus costs and inconvenience of a second surgery).  I thought the case would settle easily.

I was relieved when the insurance adjuster reviewed the case and told me “Bruce, the actions of our orthopedist were certainly negligent.”  I expected the next step would be to negotiate a settlement.  Instead, I was then told there would be no offer because the case had limited value and the insurance carrier was confident that the tremendous expenses of hiring medical experts, depositions and other litigation expenses would be greater for the claimant than any possible recovery.  In other words, the insurance carrier was confident the case was not financially feasible to pursue and, therefore, they would deny payment for a case they knew was absolutely meritorious.

This is shameful and callous but commonplace for insurance carriers.  Insurance companies are not the “good hands people” and certainly not your “good neighbors”.  They are difficult and calculating adversaries.  If you want to fight an unfair denial from an indifferent insurance carrier, contact us.