Judge rules for insurer in doctor’s allocation lawsuit


A judge has sided with a medical malpractice insurer in a legal challenge that accused the company of misallocating blame among physicians after a liability settlement.

In a Sept. 27 decision, Judge Debra Squires-Lee of the Commonwealth of Massachusetts Superior Court ruled that Medical Professional Mutual Insurance Company (ProMutual) acted reasonably when it settled a medical liability claim for $500,000 against several health providers and allocated responsibility for 30% of the settlement ($150,000) to internist Nataly Minkina, MD. ProMutual was well within its rights and obligations when it settled the underlying claim and did not act in bad faith when assigning responsibility in the case, Judge Squires-Lee wrote in her 49-page ruling.

“At its heart, this case is about a multiple defendant malpractice lawsuit with finger pointing by Dr. Minkina against her codefendants and others, and a disagreement about ProMutual’s ultimate determination about how to allocate a global settlement with the plaintiffs amongst ProMutual’s insureds,” Judge Squires-Lee wrote in the decision. “Dr. Minkina strongly believes that she did not fail [the patient], that she acted reasonably, and that her treatment of [the patient] satisfied the standard of care. She also questions why ProMutual failed to allocate liability in the [patient’s] suit to other physicians. However ... the question for this court is whether ProMutual committed unfair or deceptive acts or practices in its settlement and allocation of its settlement. I conclude that ProMutual did not.”

The case stems from a patient’s lawsuit against Dr. Minkina and several others at Blue Hills Medical Associates in Braintree, Mass. The patient alleged that the health care professionals were responsible for a missed breast cancer diagnosis. Dr. Minkina saw the patient just once in 2002 while covering for another doctor. During the visit, she confirmed some nodularity in the 55-year-old women’s breast and referred her for a mammogram and an ultrasound. A radiologist twice reported no abnormalities, which Dr. Minkina said she relayed to the patient. Dr. Minkina left the practice shortly after.

The patient visited the practice several more times and was referred for another mammogram in 2006, the results of which revealed some signs of malignancy, according to court documents. However, a nurse at the practice misread, misunderstood, or overlooked the signs and recorded that “the benign breast condition had no changes,” according to court transcripts. Later that year, the patient visited the practice complaining of headaches and a droopy eye at which time her primary care physician diagnosed sinusitis and prescribed antibiotics. In 2007, the patient underwent magnetic resonance imaging of the brain and the breast, which revealed widespread metastatic carcinoma. She and her family sued Dr. Minkina and several others in June 2007. The patient died in 2008.

ProMutual settled the case against the defendants for $500,000 in 2008, allocating 30% of the liability to Dr. Minkina, 10% of the nurse practitioner, 60% to the medical practice, and no liability to the other doctors named. ProMutual contended Dr. Minkina bore more responsibility than the other health care professionals named for the delayed diagnosis because of causation factors and standard of care violations, namely that Dr. Minkina should have pursued a biopsy for the patient.

Dr. Minkina sued the insurer in 2012, claiming chiefly that the insurer allocated an unjustifiably high percentage of liability to her because she was no longer insured and because the company had an economic incentive to allocate a disproportionate percentage of responsibility and damages.

A lower court initially dismissed Dr. Minkina’s suit, but the Commonwealth of Massachusetts Appeals Court in 2015 overturned that decision, ruling the case could move forward. In 2018, the superior court agreed Dr. Minkina had a valid bad faith claim, stating that she had provided information about ProMutual’s conduct from which “a reasonable juror could infer the defendant’s bad faith in connection with its settling the underlying malpractice suit, including the allocation of liability.

But Judge Squires-Lee ruled that trial evidence showed that ProMutual did not act for its own benefit or favor other insureds over Dr. Minkina. The judge wrote that the insurer satisfied its contractual and legal obligations when defending the underlying legal claim.

Dr. Minkina said she was disappointed with the ruling, but that she is considering her legal avenues.

“[The] judge’s decision in my case against ProMutual is obviously disappointing, but it is not the first time [the] trial court decided against me in this case,” Dr. Minkina said in an interview. “It is a battle between David and Goliath, [a] single physician against [a] $3.6 billion insurance company with unlimited resources. The decision has just been announced and it is voluminous. I am still reading it and evaluating my options with my attorneys, but it is not the end of the road yet.”

ProMutual declined to comment about the decision.

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