40-3411.Commencement of actions upon failure to reach settlement orobtain court approval thereof on amount to be paid from fund; defense ofaction; attorneys' fees; obligation of provider to attend hearings and trialand give evidence; costs.(a) In any claim in which the insurer of a health care provider or inactivehealth care provider covered by the fund has agreed to settle its liabilityon a claim against its insured or when the self-insurer has agreed to settleliability on a claim and the claimant's demand is in an amount in excessof such settlement, to which the board of governors doesnot agree, or where theclaim is against an inactive health care provider covered by the fund whodoes not have liability insurance in effect which is applicable to the claimand theclaimant and board of governors cannot agree upon asettlement, an action mustbe commenced by the claimant against the health care provideror inactive health care provider in a court of appropriate jurisdictionfor such damages as are reasonable in the premises. If an action is alreadypending against the health care provider or inactive health care provider,the pending action shall be conducted in all respects as if the insureror self-insurer had not agreed to settle.
(b) Any such action against a health care provider covered by the fundor inactive health care provider covered by the fund who has liabilityinsurancein effect which is applicable to the claim shall be defended by the insureror self-insurer in all respects as if the insurer or self-insurer had notagreed to settle its liability. Notwithstanding any other provision oflaw, the insurer or self-insurer shall be reimbursedfrom the fund for the costs of such defense incurred after the settlementagreement was reached, including a reasonable attorney's fee not to exceedthe maximum hourly rate established by the board ofgovernors. The board of governorsis authorizedto employ independent counsel in any such action against a health care provideror an inactive health care provider covered by the fund.If the primary carrier or self-insurer determines that the policy limits orthe self-insured amount of basic coverage should be tendered to the fund inorder to relieve itself of further costs of defense, it may do so in the mannerspecified by the board of governors. In the event of sucha tender, the fund shallbecome responsible for the conduct of the defense. Theboard of governors may employthe attorney retained by the primary carrier or self-insurer or appoint othercounsel to represent such health care provider. In any event, the board ofgovernorsshall pay attorneys' fees at a rate not to exceed the maximum hourly rateestablished by the board of governors. Under suchcircumstances, the fund shall haveno liability for attorneys' fees to any attorney not so appointed.
(c) In any such action the health care provider or the inactive healthcare provider against whom claim is made shall be obligated to attend hearingsand trials, as necessary, and to give evidence.
(d) The costs of the action shall be assessed against the fund if therecovery is in excess of the amount offered by the board ofgovernors to settlethe case and against the claimant if the recovery is less than such amount.
History: L. 1976, ch. 231, § 11; L. 1983, ch. 160, § 3;L. 1994, ch. 181, § 4; L. 1994, ch. 328, § 2; Jan. 1, 1995.
40-3411.Commencement of actions upon failure to reach settlement orobtain court approval thereof on amount to be paid from fund; defense ofaction; attorneys' fees; obligation of provider to attend hearings and trialand give evidence; costs.(a) In any claim in which the insurer of a health care provider or inactivehealth care provider covered by the fund has agreed to settle its liabilityon a claim against its insured or when the self-insurer has agreed to settleliability on a claim and the claimant's demand is in an amount in excessof such settlement, to which the board of governors doesnot agree, or where theclaim is against an inactive health care provider covered by the fund whodoes not have liability insurance in effect which is applicable to the claimand theclaimant and board of governors cannot agree upon asettlement, an action mustbe commenced by the claimant against the health care provideror inactive health care provider in a court of appropriate jurisdictionfor such damages as are reasonable in the premises. If an action is alreadypending against the health care provider or inactive health care provider,the pending action shall be conducted in all respects as if the insureror self-insurer had not agreed to settle.
(b) Any such action against a health care provider covered by the fundor inactive health care provider covered by the fund who has liabilityinsurancein effect which is applicable to the claim shall be defended by the insureror self-insurer in all respects as if the insurer or self-insurer had notagreed to settle its liability. Notwithstanding any other provision oflaw, the insurer or self-insurer shall be reimbursedfrom the fund for the costs of such defense incurred after the settlementagreement was reached, including a reasonable attorney's fee not to exceedthe maximum hourly rate established by the board ofgovernors. The board of governorsis authorizedto employ independent counsel in any such action against a health care provideror an inactive health care provider covered by the fund.If the primary carrier or self-insurer determines that the policy limits orthe self-insured amount of basic coverage should be tendered to the fund inorder to relieve itself of further costs of defense, it may do so in the mannerspecified by the board of governors. In the event of sucha tender, the fund shallbecome responsible for the conduct of the defense. Theboard of governors may employthe attorney retained by the primary carrier or self-insurer or appoint othercounsel to represent such health care provider. In any event, the board ofgovernorsshall pay attorneys' fees at a rate not to exceed the maximum hourly rateestablished by the board of governors. Under suchcircumstances, the fund shall haveno liability for attorneys' fees to any attorney not so appointed.
(c) In any such action the health care provider or the inactive healthcare provider against whom claim is made shall be obligated to attend hearingsand trials, as necessary, and to give evidence.
(d) The costs of the action shall be assessed against the fund if therecovery is in excess of the amount offered by the board ofgovernors to settlethe case and against the claimant if the recovery is less than such amount.
History: L. 1976, ch. 231, § 11; L. 1983, ch. 160, § 3;L. 1994, ch. 181, § 4; L. 1994, ch. 328, § 2; Jan. 1, 1995.
40-3411.Commencement of actions upon failure to reach settlement orobtain court approval thereof on amount to be paid from fund; defense ofaction; attorneys' fees; obligation of provider to attend hearings and trialand give evidence; costs.(a) In any claim in which the insurer of a health care provider or inactivehealth care provider covered by the fund has agreed to settle its liabilityon a claim against its insured or when the self-insurer has agreed to settleliability on a claim and the claimant's demand is in an amount in excessof such settlement, to which the board of governors doesnot agree, or where theclaim is against an inactive health care provider covered by the fund whodoes not have liability insurance in effect which is applicable to the claimand theclaimant and board of governors cannot agree upon asettlement, an action mustbe commenced by the claimant against the health care provideror inactive health care provider in a court of appropriate jurisdictionfor such damages as are reasonable in the premises. If an action is alreadypending against the health care provider or inactive health care provider,the pending action shall be conducted in all respects as if the insureror self-insurer had not agreed to settle.
(b) Any such action against a health care provider covered by the fundor inactive health care provider covered by the fund who has liabilityinsurancein effect which is applicable to the claim shall be defended by the insureror self-insurer in all respects as if the insurer or self-insurer had notagreed to settle its liability. Notwithstanding any other provision oflaw, the insurer or self-insurer shall be reimbursedfrom the fund for the costs of such defense incurred after the settlementagreement was reached, including a reasonable attorney's fee not to exceedthe maximum hourly rate established by the board ofgovernors. The board of governorsis authorizedto employ independent counsel in any such action against a health care provideror an inactive health care provider covered by the fund.If the primary carrier or self-insurer determines that the policy limits orthe self-insured amount of basic coverage should be tendered to the fund inorder to relieve itself of further costs of defense, it may do so in the mannerspecified by the board of governors. In the event of sucha tender, the fund shallbecome responsible for the conduct of the defense. Theboard of governors may employthe attorney retained by the primary carrier or self-insurer or appoint othercounsel to represent such health care provider. In any event, the board ofgovernorsshall pay attorneys' fees at a rate not to exceed the maximum hourly rateestablished by the board of governors. Under suchcircumstances, the fund shall haveno liability for attorneys' fees to any attorney not so appointed.
(c) In any such action the health care provider or the inactive healthcare provider against whom claim is made shall be obligated to attend hearingsand trials, as necessary, and to give evidence.
(d) The costs of the action shall be assessed against the fund if therecovery is in excess of the amount offered by the board ofgovernors to settlethe case and against the claimant if the recovery is less than such amount.
History: L. 1976, ch. 231, § 11; L. 1983, ch. 160, § 3;L. 1994, ch. 181, § 4; L. 1994, ch. 328, § 2; Jan. 1, 1995.
