Remember diagramming sentences in your youth?
Too soon.
The tools lawyers use are words and punctuation to transmit intended meaning. One reason contracts are so long is to avoid ambiguity.
Enter the Oxford comma. What is it?
[T]he Oxford comma – or serial comma – is the last in a list of three or more items before the conjunction. For example, a list of three ingredients might be punctuated ‘sugar, flour and butter’ (without the Oxford comma) or ‘sugar, flour, and butter’ (with it).
Opinions vary about whether it’s needed: the Associated Press and the New York Times style books say it should only be used for clarity, while the Chicago Manual of Style recommends its use in almost all instances.
Most British style guides, such as The Economist, recommend using it only where necessary to avoid ambiguity.
It’s easy to see how its presence or absence CAN create ambiguity.
Many times, the ambiguity is easily resolved with mere common sense. Sometimes, not. A lawsuit involving an insurance carrier resolved in favor of the carrier. To the detriment of the policyholder, who was denied coverage.
Chubb and Executive Risk had insured Control Group, a management and financial consulting firm, and its accounting subsidiary, Constantin Associates, for several years.
In 2018, ECB USA and others sued Constantin in Miami-Dade Circuit Court, alleging wrongdoing in a professional audit. The following year, Constantin settled the lawsuit for $4.9 million and assigned insurance rights to the plaintiffs.
But Chubb and its sister company, ERI, denied the claims, arguing that when Constantin’s and Control Group’s errors and omissions policy was renewed in 2017, the wording had changed, and the policy no longer covered audit services for non-financial firms.
ECB, a Florida corporation, filed suit against Chubb and ERI, alleging breach of contract. The case was moved to federal court.
The disputed policy clause said coverage was for management consulting services, and those were defined as “services directed toward expertise in banking finance, accounting, risk and systems analysis, design and implementation, asset recovery and strategy planning for financial institutions.”
The underlying lawsuit against Constantin did not involve a financial institution. Chubb’s lawyers argued that the clause meant that the policy covered only those services done for financial institutions. ECB USA and the other plaintiffs disagreed.
“The plaintiffs’ only argument in opposition comes down to a comma,” the federal judge said.
ECB’s attorneys argued that because the clause did not have a comma before the words, “for financial institutions,” it meant that the policy was not limited only to work performed for financial institutions. The policy surely covered other types of accounting, and audits are generally considered to be part of accounting services, the plaintiffs said.
The judge found in favor of Chubb, citing a 1971 federal court decision that said that “while commas at the end of a series can avoid ambiguity, the use of such commas is discretionary”.
Back to settlements that need to be reported to select Medical Boards.
Each state is different.
California. Settlements of over $30k (based on claim for damages due to death or personal injury, negligence, etc.) must be reported to the Board regulating that licensee’s practice.
California Code, Business and Professions Code – BPC § 801.01
a. A complete report shall be sent to the Medical Board of California, the Osteopathic Medical Board of California, the California Board of Podiatric Medicine, or the Physician Assistant Board with respect to a licensee of the board as to the following:
- A settlement over thirty thousand dollars ($30,000) or arbitration award of any amount or a civil judgment of any amount, whether or not vacated by a settlement after entry of the judgment, that was not reversed on appeal, of a claim or action for damages for death or personal injury caused by the licensee’s alleged negligence, error, or omission in practice, or by the licensee’s rendering of unauthorized professional services.
- A settlement over thirty thousand dollars ($30,000), if the settlement is based on the licensee’s alleged negligence, error, or omission in practice, or on the licensee’s rendering of unauthorized professional services, and a party to the settlement is a corporation, medical group, partnership, or other corporate entity in which the licensee has an ownership interest or that employs or contracts with the licensee.
Virginia. The amount is lower. $10k.
18VAC85-20-290. Reporting of medical malpractice judgments and settlements.
In compliance with requirements of § 54.1-2910.1 of the Code of Virginia, a doctor of medicine, osteopathic medicine, or podiatry licensed by the board shall report all medical malpractice judgments and settlements of more than $10,000 in the most recent 10-year period within 30 days of the initial payment. A doctor shall report a medical malpractice judgment or settlement of less than $10,000 if any other medical malpractice judgment or settlement has been paid by or for the licensee within the preceding 12 months. Each report of a settlement or judgment shall indicate:
- The year the judgment or settlement was paid.
- The specialty in which the doctor was practicing at the time the incident occurred that resulted in the judgment or settlement.
- The total amount of the judgment or settlement in United States dollars.
- The city, state, and country in which the judgment or settlement occurred.
The board shall not release individually identifiable numeric values of reported judgments or settlements but shall use the information provided to determine the relative frequency of judgments or settlements described in terms of the number of doctors in each specialty and the percentage with malpractice judgments or settlements within the most recent 10-year period. The statistical methodology used will include any specialty with more than 10 judgments or settlements. For each specialty with more than 10 judgments or settlements, the top 16% of the judgments or settlements will be displayed as above average payments, the next 68% of the judgments or settlements will be displayed as average payments, and the last 16% of the judgments or settlements will be displayed as below average payments.
For purposes of reporting required under this section, medical malpractice judgment and medical malpractice settlement shall have the meanings ascribed in § 54.1-2900 of the Code of Virginia. A medical malpractice judgment or settlement shall include:
- A lump sum payment or the first payment of multiple payments;
- A payment made from personal funds;
- A payment on behalf of a doctor of medicine, osteopathic medicine, or podiatry by a corporation or entity comprised solely of that doctor of medicine, osteopathic medicine, or podiatry; or
- A payment on behalf of a doctor of medicine, osteopathic medicine, or podiatry named in the claim where that doctor is dismissed as a condition of, or in consideration of the settlement, judgment or release. If a doctor is dismissed independently of the settlement, judgment or release, then the payment is not reportable.
Definition of medical malpractice settlement is:
“Medical malpractice settlement” means any written agreement and release entered into by or on behalf of a licensee of the Board in response to a written claim for money damages that arises out of any personal injuries or wrongful death, based on health care or professional services rendered, or that should have been rendered, by a health care provider, to a patient. https://law.lis.virginia.gov/vacode/54.1-2900/
In Texas, the amount is $50k. I think.
(5) Repeated or recurring meritorious health care liability claims. It shall be presumed that a claim is “meritorious,” within the meaning of §164.051(a)(8) of the Act, if there is a finding by a judge or jury that a licensee was negligent in the care of a patient or if there is a settlement of a claim without the filing of a lawsuit or a settlement of a lawsuit against the licensee in the amount of $50,000 or more. Claims are “repeated or recurring,” within the meaning of §164.051(a)(8) of the Act, if there are three or more claims in any five-year period. The date of the claim shall be the date the licensee or licensee’s medical liability insurer is first notified of the claim, as reported to the board pursuant to §160.052 of the Act or otherwise.
And, back to Section 160.052:
Sec. 160.052. REPORT FROM INSURER OR PHYSICIAN.
- Each insurer shall submit to the board the report or other information described by Section 160.053 at the time prescribed. The insurer shall provide the report or information with respect to:
- a complaint filed against an insured in a court, if the complaint seeks damages relating to the insured’s conduct in providing or failing to provide a medical or health care service; and
- settlement of a claim without the filing of a lawsuit or settlement of a lawsuit made on behalf of the insured involving damages relating to the insured’s conduct in providing or failing to provide a medical or health care service.
- A physician practicing medicine in this state shall report the information required under Section 160.053 if the physician:
- does not carry or is not covered by medical professional liability insurance; or
- is insured by a nonadmitted carrier or other entity providing medical liability insurance that is not reporting under this subchapter.
Well, is the trigger in Texas $1 or $50k for settlements not yet based on filing a lawsuit?
Given that there is no “Oxford comma” here (which I believe was intentional), my read IS this.
[if there is a settlement of a claim without the filing of a lawsuit or a settlement of a lawsuit against the licensee] in the amount of $50,000 or more.
My read is NOT this.
[if there is a settlement of a claim without the filing of a lawsuit] or [a settlement of a lawsuit against the licensee in the amount of $50,000 or more].
My take is that the threshold in Texas for reporting to the Medical Board is $50k. The common sense interpretation. Still, using the brackets, as above, would make that clear. Or spelling it out in an enumerated outline.
Because the Oxford comma is not universally used, mistakes related to intent are inevitable, unless care is taken to make the meaning clear.
What do you think?
Jeff,
The meaning of the Texas Medical Board is really unclear, and it is important to know.
Does this Texas Board regulation have to be litigated to understand what the intent is?
Would a “reasonable man” expect the TMB to correct the wording of the regulation once they are made aware of it?
The practice of medicine is hard enough without all of this additional and preventable BS.
What is your opinion?
Richard B Wilner
The Center for Peer Review Justice
New Orleans, LA
Several things: there are reasons I stopped using Chubb. You hit on one of them above. Once touted as a top-tier insurance carrier, I found that they were much more interested in taking in premiums than taking care of their clients. Enough of them.
Trust me on this one: https://xkcd.com/2995/ You’re welcome.
A little something I wrote about a million years ago:
New Horizons in Speech Pathology
We have noted over the past few (well, maybe quite a few (actually dozens!)) of years that the incidence of parentheses (hereinafter and in the hereafter to be called “parens”)(especially nested (there must be another term for the configuration, but “nested” isn’t too bad) ones) has been increasing. As this proliferation continues, it becomes necessary to find the cause (if there is one) for this occurrence. Several people [1] have postulated
_______________________________________________________
[1 I haven’t met them, actually….]
that their presence is due to an environmental factor, possibly a water pollutant. Or, who knows (?), maybe a depletion in the ozone layer permitting freer entry of heavy cosmic ray particles. As such, they may represent (or ((much) less likely) not, as the case may be) a malignant grammatical form. Because parens are structural rather than “primarily” meaningful, we have adopted the term parensarcoma to describe their unruly and often unstoppable proliferation.
We have classified other similar phenomena. Ellipses, for example…. These are benign periodomata, since they have no malignant potential. Although they are similar to the dreaded parensarcoma in that they arise from the “connective tissue” of the sentence, they do not rate the “-sarcoma” suffix because of their benignity. They represent sentence condylomata and may be caused by a virus.
Dyed-in-the-wool aficionados of hyphenations (e.g., Margaret (call me “Maggie”) Bourke-White (whoever she is (was, actually))), commanders-in-chief, and others are responsible for the locally invasive hyphenoma. Although never been known to metastasize, its presence can trigger concern because in the not-too-distant-future, it is conceivable that, well, how can we predict….?
Legalese jargon needs to go. Many lawyers and lawmakers need to learn from journalists how to write. We need more short, clear sentences
https://www.economist.com/science-and-technology/2023/05/31/why-legal-writing-is-so-awful