On October 25, 2018, an appellate court held that an orthopedic surgeon, hit with an $8,600,000 jury verdict, could proceed to a jury trial to determine whether his malpractice insurer acted in bad faith in refusing to settle. The 36 year old male patient who sued the orthopedist had complications following an ankle fracture that required multiple surgeries leading to an above knee amputation. During the litigation and trial the orthopedist's insurer, Medical Liability Mutual Insurance Company (MLMIC), had steadfastly refused to offer any amount in response to the patient's settlement demand of both the $1.3 million primary policy and an excess policy of $1,000,000. There were questions of fact and a classic battle of the experts which only a jury could resolve. It took the jury about one hour for the jury to decide that the orthopedist caused a 40 year old man to lose his leg before deciding how much to award for pain and suffering, lost wages and medical expenses.

This bad faith action against MLMIC will be decided by a jury because during jury deliberations, the jury sent a note indicating that they had found liability against the orthopedist and were considering how much to award the patient for future medical expenses. There was still time to settle before the jury were to reach a verdict. The orthopedist finally consented to settle but MLMIC still failed to offer the primary policy of $1,300,000 which would then clear the way for the $1,000,000 excess policy to be offered. Less than half an hour later the jury reached its verdict and still yet MLMIC failed to offer a dime. The orthopedist now has to consider bankruptcy proceedings or paying $6,300,000 out of his personal assets to satisfy the judgment. A jury will decide whether MLMIC had an opportunity to settle and whether it acted in bad faith in failing to settle. If the orthopedist wins his claim of bad faith refusal to settle, MLMIC will have to pay the entire $8,600,000 verdict plus 9% interest from the date of the verdict over 4 years ago (which was upheld on appeal). Healthcare Professionals Ins. Co. v. Parentis & MLMIC, 2018 N.Y. Slip Op. 07224