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If My Doctor Declares Bankruptcy, Can I Recover for My Medical Malpractice Claim?

What happens when a patient is injured by the medical negligence of a physician, and the patient brings a claim for medical malpractice against the physician, but the physician declares bankruptcy with the hopes of discharging the patient's claim? Can the physician successfully discharge a patient's medical malpractice claim through bankruptcy?

This scenario happens more often than one might guess. Of course, the primary purpose of filing for bankruptcy is to obtain reprieve from debts (and the creditors that hold the debts). Although the attorneys at Webb & Taylor, LLC do not represent nor offer advice to persons wishing to file for bankruptcy, physicians can seek "relief" in the bankruptcy courts just like any other person, and if they comply with the bankruptcy court's mandates, a physician's debts can be discharged.

Dischargeable & Non-dischargeable Debts

A medical malpractice lawsuit, even a potential medical malpractice lawsuit, if properly identified by the physician as one of his or her debts, can be discharged. Discharge, in this context, means the debtor (in this case, the defendant physician) is released of the obligation to pay the debt.

However, debts that are considered non-dischargeable are not forgiven, so to speak, via bankruptcy, even where the debtor complies with the bankruptcy court's mandates. Certain medical malpractice claims can be non-dischargeable.

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In most cases, for a medical malpractice claim to be non-dischargeable, it must arise from action which is willful and committed with intent to cause injury.[1] In other words, claims that arise out of the willful actions of the debtor-physician, in which the debtor-physician purposefully caused harm to the patient, are non-dischargeable. Whether the physician purposefully caused harm to the patient is a case-by-case evaluation, but, needless to say, it is a tall task to convince a bankruptcy judge that a physician intended to harm a patient.

Lack of Malpractice Insurance does not Equal Intent to Injure

Unfortunately, many of the physicians that declare bankruptcy are the same physicians that fail to carry medical malpractice insurance. Also unfortunate is that most patients do not inquire of their doctor whether he or she carries medical malpractice insurance prior to "going under the knife." When the injured patient later presents a medical malpractice claim, the uninsured physician often seeks protection from the bankruptcy court. This leads to the oft-asked question of whether failure to carry medical malpractice insurance is a willful act intended to cause injury, i.e., is non-dischargeable.

The Kawaauhau v. Geiger case sheds some light on whether a medical malpractice claim can be exempted from discharge where the debtor-physician chose not to carry medical malpractice insurance. In addition to ruling that medical negligence cases are by their nature not intentional tort cases (like assault or battery), the highest U.S. court likewise ruled that a failure to carry malpractice insurance was only a negligent act, not a deliberate act rising to the level of willful or malicious.

The Supreme Court held that the debtor-physician must have actual intent to cause injury, more than "merely a deliberate act that led to the injury." Therefore, although a doctor can choose to not carry medical malpractice insurance, which in turn severely limits (i.e., injures) a patient's ability to seek redress from that physician, such a choice does not amount to making a medical malpractice claim non-dischargeable, at least according to the Supreme Court.

Although several judges within the Eleventh Circuit (the Federal appellate court that includes Georgia and several surrounding states) have carved out a seemingly lower standard than Geiger by maintaining that a medical malpractice claim can be non-dischargeable where the debtor-physician commits an intentional act which is substantially certain to cause injury,[2] it would be an uphill battle in most circumstances even to prove a physician was substantially certain his acts would harm the patient.

Of course, if the patient prevails in bankruptcy court against the physician and the medical malpractice claim is deemed exempt from the bankruptcy discharge, the patient still must prove his or her medical malpractice case in the trial court.

Our Firm is Ready to Fight for You

Because each situation is different, it is important to discuss possible medical malpractice claims with an experienced attorney. If you or a loved one has been injured by a medical provider, the attorneys here at Webb & Taylor, LLC, are eager to speak to you.

Call or email us for a free and confidential consultation!

[1] See Kawaauhau v. Geiger, 523 U.S. 57 (1998).

[2] for example, see In Re Walker, 48 F.3d 1161 (1995)

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