A Doctor's Insurer Asks What You Want After a Prescribing Error in Alabama

Attorney Answer

Your answer, that you weren't sure yet, was the right one, and you don't have to give a figure now. The person asking works for the doctor's insurer, and a number named before you know the full effect of the medication tends to become the ceiling. What you do need to watch is time: Alabama's malpractice deadlines are short, and one of them is absolute.

Why the insurer is asking. An insurer that opens an investigation and asks what you want is gathering information for the doctor it insures. That is ordinary, and a call like that is not a sign of bad faith. But the representative is not working for you. Anything you describe, including your symptoms, how you feel now and what you would accept, becomes part of their file. You are not required to discuss the case with them, and it is reasonable to say you will respond once you have spoken to a lawyer.

Why a number now is a problem. Three and a half months of the wrong medication can have effects that take time to show, and to measure. An early figure is usually based on less than the whole picture. Once named, it is the anchor every later conversation starts from.

What a claim would require. Alabama measures a doctor's care under Ala. Code § 6-5-484(a):

(a) In performing professional services for a patient, a physician’s, surgeon’s, or dentist’s duty to the patient shall be to exercise such reasonable care, diligence, and skill as physicians, surgeons, and dentists in the same general neighborhood, and in the same general line of practice, ordinarily have and exercise in a like case. In the case of a hospital rendering services to a patient, the hospital must use that degree of care, skill, and diligence used by hospitals generally in the community.

And the patient carries the burden under Ala. Code § 6-5-548(a):

(a) In any action for injury or damages or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care, the plaintiff shall have the burden of proving by substantial evidence that the health care provider failed to exercise such reasonable care, skill, and diligence as other similarly situated health care providers in the same general line of practice ordinarily have and exercise in a like case.

That proof comes from a qualified provider in the same field, which is why a lawyer will want your records reviewed before any figure is discussed.

What you can do

1. Keep the insurer's letter, and note the date and substance of the call.

2. Request your records: the prescriptions, the pharmacy history and the visit notes for the whole period.

3. Tell your current doctor what happened and get any follow-up care you need; those records show the effect of the error.

4. Don't give the insurer a figure, or a recorded statement, before speaking to a lawyer.

5. Speak to an Alabama malpractice lawyer. Most offer a free first consultation.

⏱ Time limits apply. Ala. Code § 6-5-482(a):

(a) All actions against physicians, surgeons, dentists, medical institutions, or other health care providers for liability, error, mistake, or failure to cure, whether based on contract or tort, must be commenced within two years next after the act, or omission, or failure giving rise to the claim, and not afterwards; provided, that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; provided further, that in no event may the action be commenced more than four years after such act; except, that an error, mistake, act, omission, or failure to cure giving rise to a claim which occurred before September 23, 1975, shall not in any event be barred until the expiration of one year from such date.

When a prescribing error runs for months, the date the clock started is itself a question for a lawyer. Do not rely on an open investigation to protect it; plan around the statute's dates, not the insurer's timetable.