What happens if I’m sued? A guide to handling errors and omissions claims

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The prospect of facing an errors and omissions lawsuit is understandably daunting for a small business owner, but preparedness can alleviate the risks.
A view of a desk from above with hands, papers, a gavel, and scales.

Errors and omissions claims are the stuff of nightmares for most small business owners – and for good reason. According to a study conducted for the U.S. Chamber Institute for Legal Reform [PDF], over 50% of small business owners interviewed said they have been threatened with a lawsuit. And many of these suits are filed without merit.

Think about it: you could meet all of your professional obligations and still get slapped with an E&O lawsuit from a disgruntled customer who claims your work simply wasn’t up to standards. Many E&O claims are based on a client’s perception and other subjective factors, rather than the actual quality of your work. (For more information about what sparks E&O claims, read “What is malpractice (professional liability)?”).

Even though most errors and omissions lawsuits are dropped or dismissed before they reach the courtroom, simply receiving a formal complaint can be perplexing. To prepare yourself for what happens when your business is sued, keep reading.

When should you contact your E&O provider?

For the purposes of this blog, we will assume you have already tried to resolve the issue with your client or customer before it became a claim, but they just wouldn’t budge. Now you’ve been served with a formal complaint.

The first thing you should do is contact your E&O insurance provider.

Two important reasons for contacting your E&O insurance provider:

1. You may not receive benefits otherwise. Most E&O (professional liability) policies include a clause that describes how quickly you must inform your insurer of a lawsuit. If you fail to deliver the news within the given timeframe, your insurer may be able to deny your claim.

2. Your insurer can find a lawyer for you. That’s right: many errors and omissions policies not only help you pay for legal defense, but they also help you find a lawyer who specializes in professional liability claims. Without this coverage, you would have to complete this difficult task on your own.

You lawyer will review the formal complaint and decide what your next move should be. If the claim seems unfounded, your lawyer may try to get the lawsuit dismissed on legal grounds. Your lawyer may also decide it’s best to:

Settle out of court. If the claim cannot be dismissed on legal grounds, your lawyer may reach out to the plaintiff’s (the person who initiated the lawsuit) lawyer with a proposal to resolve (settle) the dispute out of court. With some negotiation, you may be able to get the lawsuit dropped with a simple apology or a promise. In other cases, you can settle with an amount of money, which your E&O insurance can pay for. This method of conflict resolution is typically less expensive than going to trial.

Go to trial. If the plaintiff isn’t budging, you may have to prepare to go to court. But don’t worry – you and the plaintiff can still decide to settle at any time.

For more information on the mechanics of an errors and omissions lawsuit, check out our post “Understanding errors and omissions (malpractice) lawsuits.”

How to keep your cool and listen to your E&O lawyer

Finding yourself in the middle of an E&O lawsuit can be unnerving, but it’s important to remain calm and follow your lawyer’s instructions. Litigation is tricky business and even a seemingly innocuous remark – if overheard by the wrong ear – can hurt your chances of winning your case.

Errors and omissions lawsuits are already time-consuming and expensive – don’t make it harder on yourself! Here are a few general tips to keep in mind:

Don’t beat yourself up. Keep in mind that many errors and omissions lawsuits have nothing to do with your ability to do your job – despite what the plaintiff is claiming. Realize that this lawsuit is a learning experience and there are steps you can take to prevent similar lawsuits in the future.

Be honest and thorough with your counsel. Even though the process might be scary, there is no point in lying to your lawyer or your claims representative. It will only hurt you in the long run. In addition, you should strive to describe the details of the claim with the greatest precision and accuracy. For this reason, it’s a good idea to keep track of all client, customer, or patient communication – especially when you suspect they are unhappy.

Mum’s the word. As with any lawsuit, you should never talk about your E&O claim with anyone – except your lawyer and claims representative, of course.

Never say you are sorry. You should never admit guilt without your lawyer’s consent. Even saying “I’m sorry” or “I apologize” to the plaintiff could be used against you in court.

Never make decisions without your lawyer. For example, you should never tell the plaintiff you’d like to settle without talking to your lawyer first. In fact, you shouldn’t talk (or write) to the plaintiff at all unless your lawyer is present.

Don’t touch your records. You shouldn’t allow anyone to look at the records related to your claim unless you’ve obtained approval from your claims representative. The records should never be removed, copied, or altered in any way – including any clarifying remarks you may wish to add, no matter how helpful they may seem. If your case goes to trial, the altered records could damage your integrity.

Besides helping you prepare for the best defense possible, these tips also help you stay on your insurer’s good side. In some cases, a failure to follow the rules could threaten your errors and omissions coverage.

The cost of an errors and omissions insurance claim

Errors and omissions of professional liability insurance claims can be costly, even when they are dismissed or dropped. The cost of legal defense for a claim that never makes it to court can average between $2,000 and $5,000 – a small fortune for many small business owners. That’s why errors and omissions insurance helps you pay for:

  • Legal defense
  • Court fees
  • Judgments and settlements

Every year, small businesses that make less than $1 million in revenue pay around $33.9 billion in self-insured and uninsured commercial liability tort costs. See the Tort Liability Costs for Small Business [PDF] report for more statistics – but don’t become one! Talk to one of our insurance agents for more information about adding errors and omissions coverage to your small business insurance plan.

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