MSC Partner and Managing Shareholder James C. Sawran recently testified as an expert witness in the areas of medical malpractice and bad faith insurance law in a case tried in Jacksonville Circuit Court styled Samiian v. First Professionals Insurance Company, Inc. The bad faith litigation arose from an underlying medical malpractice arbitration award of over $43,000,000, which far exceeded the physician's available malpractice insurance coverage limits of $250,000. The plaintiff in the underlying claim was a 32 year old businessman whose annual income was over $2,500,000, and died following an elective plastic surgery procedure performed in the physician's office surgical suite.
After Dr. Samiian performed liposuction on April 13, 2004, his patient remained in a bed on the clinic premises. At the end of the work day, Dr. Samiian left him in the care of a surgical technologist who administered medication intravenously. The patient suffered cardiac arrest and died at 8:40 p.m., despite the best efforts of the emergency medical technicians the technologist summoned. He left a wife and two minor children. The very next day Dr. Samiian notified his insurer, FPIC, of a potential malpractice claim.
On behalf of his widow, his children and the estate, pursuant to section 766.106(2), Florida Statutes (2003), the personal representative served a notice of intent to initiate medical negligence litigation on April 13, 2005. FPIC retained Bradley Johnson, Esq., to represent Dr. Samiian and conduct a presuit investigation. FPIC’s claims adjuster, Eric Roberts, indicated in a June 30, 2005 note that the “case ha[d] become indefensible at least by post-op care” and “[w]e . . . have been unsuccessful in finding support [for] the overnight stay without an R.N. present. After discussions with [FPIC’s] management, it was decided to not only offer the policy limits, but to tender them to the plaintiffs. . . . Settlement check is being requested. Plan to offer it prior to 7/14/05, end of presuit.”1 As planned, FPIC delivered a check in the amount of policy limits to the personal representative’s attorney on July 11, 2005. The check was returned by the claimant's attorney, with a request that the doctor provide detailed financial information so that an evaluation of the offer could be made. The requested financial information was not provided, but instead the doctor's legal team requested Voluntary Binding Arbitration, which was accepted by plaintiff's counsel.
In the bad faith litigation that ensued, Dr. Samiian claimed that his insurer failed to adequately protect his interests by failing to promptly investigate and evaluate the claim, and failing to make a settlement offer immediately upon being notified of the potential claim. Mr. Sawran was fully supportive of the insurance company's claims representative and the insurer's handling of the claim.
After a two week jury trial, and despite a request from plaintiff's bad faith counsel that the jury return a verdict in excess of $50,000,000, the jury deliberated less than an hour and returned a favorable defense verdict, finding no bad faith on the part of the insurer.
1 Section 766.106, Florida Statutes (2003), provides in part:
(3) PRESUIT INVESTIGATION BY PROSPECTIVE DEFENDANT.—
(a) No suit may be filed for a period of 90 days after notice is mailed to any prospective defendant. During the 90-day period, the prospective defendant or the defendant’s insurer or self-insurer shall conduct a review . . . to determine the liability of the defendant. . . .
(b) At or before the end of the 90 days, the prospective defendant or the prospective defendant’s insurer or self-insurer shall provide the claimant with a response:
1. Rejecting the claim;
2. Making a settlement offer; or
3. Making an offer to arbitrate in which liability is deemed admitted and arbitration will be held only on the issue of damages. This offer may be made contingent upon a limit of general damages.