Dispelling the #1 myth of asset protection: Why you can lose assets in a medical malpractice lawsuit

As consultants to hundreds of physicians, including ophthalmologists, we encounter many misconceptions about asset protection planning every day. In this article, we will address the most important of all misconceptions regarding asset protection: that this area of planning is not important.

The thinking of many physicians around the country, and unfortunately their advisors as well, is that there is little to any risk of a physician losing their personal assets in a malpractice claim, especially if there is $1-3 million malpractice insurance coverage

There are a number of key issues in this analysis to review. We will take each one individually:

1. Finding proper data is difficult
Those of you who have spoken to us, or read our book For Doctors Only or other articles, know that we are not people who use extremes. Like you, we like to see data before making judgments or forming opinions. However in this area, tracking how many physicians lose personal assets in malpractice actions is very difficult, if not impossible to obtain. That is because the legal system publishes filed cases and judgments rendered, but they do not publish the collections of those judgments.

There are no reporters that publish what happens once a judgment is rendered. Did the plaintiff, with a judgment in excess of coverage limits, simply settle for the amount of the medical malpractice insurance? Did the plaintiff and his attorney pursue the personal assets of the physician and his family to satisfy any excess judgments? These are questions for which there are no answers in the published materials.

Every week in the malpractice reporters we review, there are dozens of malpractice actions decided in the states where we practice. Most decisions are for the physician defendant, and there are some are small judgments for the plaintiff, but every week there are very large judgments for the plaintiff. This may be the same in your location as well. Nonetheless, we can only hypothesize about what will occur once these very large judgments are rendered. It seems that many physicians and their advisors simply assume that their plaintiffs in these cases will walk away from very large judgments and simple settle for the malpractice insurance coverage. Let's look at a couple of reasons why this may not be so.

2. Payments, Not Evictions
A common theme in speaking to physicians and their advisors around the country on this topic seems to be that "I have never personally heard of anyone losing their home to a lawsuit," and therefore the conclusion is that it doesn't happen. However, if one understands the goal of litigation and the plaintiffs, this certainly isn't surprising. What does occur instead of eviction, is that the plaintiff with the judgment will file a lien on real estate, levy bank accounts, and essentially put levies or liens on any assets of the physicians to the amount of the judgment owed to them. The goal is not to kick the physician out of their home, but make the doctor take a loan against the home to pay off the excess judgment. And this, we can assure you, happens with regularity.

Consider this situation: a true story from David's former law practice. "In New York, I had a couple come to see me. He was an ophthalmologist and she an OB/GYN. They said that she, the OB/GYN, had just been successfully sued for a bad baby case in which the judgment rendered against her was $4 million, $2 million more than her personal malpractice coverage. I told him at the time that there was nothing I could do since there was already a judgment. While I have not spoken to the client since, I ask you, do you think that the plaintiff and their attorney who rightfully won a $4 million judgment would simply settle for the $2 million of insurance coverage when they could put a lien on the $1.5 million of equity in the defendant's home in a matter of days (or hours!) with minimal cost?"

The Legal Obligation of the Plaintiff Attorney: Get the Cash
There seems to be an underlying assumption by attorneys who advise doctors that asset protection isn't important that plaintiffs and their attorneys will not go after physicians' personal assets because it is "distasteful" or for some other reason. But put yourself in the shoes of the plaintiff and the attorney. The plaintiff's attorney has a professional and ethical obligation to represent his or her client with their best interest to the fullest extent of the law. If, as an attorney, David represented a plaintiff who had a $4 million judgment and only $2 million was paid by insurance and he knew that the defendant had millions of dollars of assets that were unprotected that he could attack in order to get the client paid in full, David would have to do this. In fact, if he didn't pursue those assets, he would be liable for malpractice to the client, and rightfully so.

When you combine the misconception of physicians that plaintiffs and attorneys won't go after their assets because of some kind of ethical consideration with the fact that there are, in fact, ethical rules requiring an attorney to go after such assets, you can understand why the advice "you don't need asset protection" is so off-base.

Why Wouldn't You Protect Assets?
If you have ever read our materials or heard us speak, you know that we are not people who say the "sky is falling." Even with all the statements that we made in this article, it is still statistically relatively low risk that you will lose personal assets in a malpractice action, regardless of your specialty. However, the point that we make with our clients and in our books and articles is that asset protection planning can actually benefit you in many ways beyond lawsuit protection.

In fact, most of the asset protection we do for clients is relatively low cost and has numerous financial, tax and estate planning benefits as well. Thus, the question becomes "if asset protection planning can protect you in many ways and can cost relatively little, why wouldn't you do it...when there is even a slight chance that you will lose personal asset at some time during your career?"

Conclusion
Certainly, asset protection planning is a crucial part of a client's wealth planning today – especially for physicians. Everyone acknowledges that there is some risk of a beyond-insurance limits lawsuit for any doctor. If this is true, and proper asset protection may actually help you BUILD wealth, then such planning cannot be ignored. The authors welcome your questions. You can contact them at 877-656-4362 or through their website, www.ojmgroup.com

SPECIAL OFFERS: To receive a free hardcopy of For Doctors Only: A Guide to Working Less & Building More, please call 877-656-4362. Visit www.ojmbookstore.com and enter promotional code ASCCOM09 for a free ebook download of For Doctors Only or the shorter For Doctors Only Highlights for your Kindle or iPad.

David B. Mandell, JD, MBA, is former attorney, consultant and author of five national books for doctors, including For Doctors Only: A Guide to Working Less & Building More, as well a number of state books. He is a principal of the financial consulting firm OJM Group www.ojmgroup.com along with Jason M. O'Dell, MS, CWM, who is also a principal and author. They can be reached at 877-656-4362 or mandell@ojmgroup.com.

Disclosure:
OJM Group, LLC. ("OJM") is an SEC registered investment adviser with its principal place of business in the State of Ohio. OJM and its representatives are in compliance with the current notice filing and registration requirements imposed upon registered investment advisers by those states in which OJM maintains clients. OJM may only transact business in those states in which it is registered, or qualifies for an exemption or exclusion from registration requirements. For information pertaining to the registration status of OJM, please contact OJM or refer to the Investment Adviser Public Disclosure web site www.adviserinfo.sec.gov.

For additional information about OJM, including fees and services, send for our disclosure brochure as set forth on Form ADV using the contact information herein. Please read the disclosure statement carefully before you invest or send money.

This article contains general information that is not suitable for everyone. The information contained herein should not be construed as personalized legal or tax advice. There is no guarantee that the views and opinions expressed in this article will be appropriate for your particular circumstances. Tax law changes frequently, accordingly information presented herein is subject to change without notice. You should seek professional tax and legal advice before implementing any strategy discussed herein.

The views, opinions and positions expressed within these guest posts are those of the author alone and do not represent those of Becker's Hospital Review/Becker's Healthcare. The accuracy, completeness and validity of any statements made within this article are not guaranteed. We accept no liability for any errors, omissions or representations. The copyright of this content belongs to the author and any liability with regards to infringement of intellectual property rights remains with them.​

© Copyright ASC COMMUNICATIONS 2018. Interested in LINKING to or REPRINTING this content? View our policies by clicking here.

 

Top 40 Articles from the Past 6 Months