ALPS In Brief — Episode 41: The Perils of Bad Follow Through

In this episode of ALPS In Brief, ALPS Risk Manager Mark Bassingthwaighte shares an insightful story of a dream cruise, a freak accident, and an attorney whose casual favor for a friend became a malpractice nightmare.

Transcript:

Welcome. You're listening to ALPS In Brief. The podcast that comes to you from the historic Florence building in beautiful downtown Missoula, Montana. I'm Mark Bassingthwaighte, and I'm the Risk Manager here at ALPS. And today, I thought it'd be fun to go in a slightly different direction. Rather than sitting down with a guest, I thought it'd be fun to share a story of a situation that I learned about during a risk management call that came in. And I think going forward, I'm going to periodically share some stories from calls when they are particularly interesting in terms of the learning they provide.

This particular story is a good one, from my perspective, because it's a reminder about the perils that can arise from a failure to follow through. So let me share a short version. I'll interpret the story that was shared with me, and then I will follow-up with a few takeaways, things that I felt were important, in terms of the learning, that we all can take away from the story.

So here's the story. A longterm client reached out to his attorney to ask for a favor regarding the client's daughter. While away on a cruise, the daughter had been struck in the face by a falling object and apparently that resulted in some substantial damage to her teeth. Although the daughter was working with an insurance adjuster, the client would feel much better having his attorney look into the matter and the attorney agreed. Shortly thereafter, the attorney was able to obtain an offer of $3000. Of course, before any offer could be accepted, he needed to check in with his client's daughter. By way of an email, he let her know about the offer and reminded her that the total costs of all injury-related dental work would need to be known before any offer could be accepted.

He went on to tell her that once she had a final number she could check back with him if she wanted to and he would let her know if the current offer was sufficient. With that accomplished, the attorney returned to his normal work routine. Now a year goes by without any contact from the daughter, and this is when the attorney's phone rang. The long-term client was calling on behalf of his daughter who had just reached out to the insurance adjuster, only to learn that the statute of limitations date had run on her claim, so no recovery would be forthcoming. In light of this development, the daughter had immediately asked her dad to contact his attorney in order to have the problem fixed and this is when the attorney finally realized he had a problem because it was becoming rather clear that the daughter believed he was her attorney too.

This is when the call to me occurred, and its purpose was to discuss the ins and outs of this attorney trying to settle a likely forthcoming malpractice claim on his own. After the call ended, I was left wondering why this attorney never took the time to simply replace a reminder in his calendar to contact his client's daughter, maybe 60 to 90 days before the statute ran. He was certainly aware that a deadline was in play, and following through with this one simple step could have prevented all of this from happening.

Another important takeaway here is that an attorney never gets an accountability pass just because the representation is framed as a favor. One can't casually look into a legal matter, pass along a little legal advice and expect there to be no fallout if something goes wrong later on. As an attorney, you are either in or out. There really isn't much of a middle ground here.

Finally, never try to settle a potential malpractice claim on your own before reporting the matter to your malpractice carrier. While specific policy language will differ between insurers, as an insured, you do have a contractual obligation to report all actual and potential claims. So just know that failing to do so can have serious repercussions down the road. So that's my story for today. I hope you found that a bit interesting. And I hope you really will take the takeaways to heart. The failure to follow through is a common problem, and we really do see attorneys finding themselves at times in what I would call the accidental client situation. And this favor setting is not uncommon as well.

And finally, lawyers do at times want to try to settle what they would consider perhaps smaller matters, frivolous matters maybe, I don't know, on their own. And carriers, at times, are actually okay with that. But you really need to report this and have the carrier sign off if you will, or agree that they're comfortable having you handle something on your own. The failure to do this really can turn out to have a consequence that is not going to be something you want. It could be the claim could be denied, and worse things can happen. It's unusual and uncommon, but it can. Even to include rescinding coverage for failure to report if the carrier learns that this is something more common. And have I seen that situation in my 20 plus years at ALPS? Absolutely, I have.

So, I hope you found something of value today. And please, if you have any thoughts of topics that you would like to hear discussed on the podcast, a guest that you'd like to hear from, please don't hesitate to reach out and share your thought. You may reach me at mbass@aplsinsurance. So, that's it, folks. Have a good one. Bye-bye.