One nightmare faced by Doctors who attempt to get paid for medical services, is a threat by the patient to “sue for malpractice.” The specter of a malpractice suit will often frighten the best Doctor to forget the money lawfully owed to him. However this is not always the case. This is how a I handled an attempt at such blackmail for a New Jersey physician.
My client, a surgeon had successfully performed surgery on a patient for an agreed fee. After fruitless efforts to be paid, the Doctor turned the matter over to me to pursue collection. I then sent out a demand letter to the patient, who responded with a letter threatening to sue the physician for “ malpractice” if I filed suit against him.
After a review of the letter, my client told me that he had properly performed the operation and was justified in requesting full payment . I then filed suit for the unpaid medical bill on behalf of the Doctor. The patient responded on his own with a counter-claim for medical malpractice and then proceeded to hire an attorney to represent him.
Once the counterclaim was filed, I advised the Doctor that the malpractice carrier had to be notified at once so that a defense of the malpractice claim could be initiated. This was done and the insurance company attorney filed an answer asking for a dismissal of the malpractice claim due to failure to have an affidavit of merit and that the claim was filed more than two (2) years after the operation raising a defense of statue of limitations.
On our first court appearance the Judge gave the patient's attorney until a specified date to obtain the affidavit of merit or face dismissal. Meanwhile the patient and his attorney scrambled in vain, to find a physician willing to say malpractice had been committed. On the return date the patient and his attorney faced the unenviable dilemma of dismissal of the malpractice counter-claim and judgment for the doctor for his medical services.
I told the patients attorney the only way we would settle was for:
- Payment in ten (10) days pf the physician's bill
- The patient's consent to voluntary dismissal of the counterclaim for medical malpractice against the doctor due to the patient's failure to obtain an affidavit of merit and that the patient could never raise such a claim again.
- That if the Doctor's malpractice rates went up because of this fictitious claim that the Doctor reserved the right to sue the patient for the rate increase.
The patient and his attorney agreed to these terms and signed a court stipulation of settlement which recited them. The Doctor was paid in seven (7) days and now knows if he has a rate increase he can go after the patient for the money.
I decided to write this article with my client's blessing so that other physicians know that blackmail by patients should not stop lawful efforts to collect for medical services.