Malpractice Insurance Considerations for Employed Physicians

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Healthcare providers who work as employed physicians for hospitals or other large networks face unique professional liability risks.  While it might seem convenient for your insurance to be taken care of by your employer, there may be limitations in your policy that you are not aware of.

Limited Scope & Duty

Most employed physicians’ malpractice policies are not written on a broad form; they are limited scope & duty policies. This means that your policy only covers you for claims related to the work that you do for that employer. If the incident that led to a complaint falls outside the scope of your job description or falls within a policy exclusion, you may not have coverage.

If you provide professional medical services outside the scope of your employment, even if it’s as a volunteer or a favor to your neighbor, you need to have a separate policy in order to be covered. Good Samaritan laws protect you only in emergency situations. Many carriers offer moonlighting policies or part-time malpractice insurance policies at discounted rates, so obtaining additional coverage is generally affordable.   

Individual Defense

If you are named in a malpractice lawsuit along with your employer, many times the same defense attorney will be appointed to represent all the parties involved. While there are certainly advantages to presenting a joint defense (reduced cost to the carrier, less “finger pointing” among providers, etc.), oftentimes physicians feel that they are not individually represented the way they’d like to be.

Fear of adverse judgements and negative public perception may increase a hospital's interest in settling claims where the potential damages are large, even when the involved physician believes his or her actions were appropriate and met the standard of care. This can cause issues in the future, since any award or settlement will be reported to the National Practitioners Data Bank and can affect credentialing, future employment, access to insurance, and more.  If you feel that your individual interests are not being served during a malpractice case, ask for your own attorney.

Consent to Settle

Individual physicians and their employers may have different views when it comes to the impact of large verdict cases. Consent to settle becomes a key issue in these instances.  When your malpractice insurance policy contains a consent provision, the carrier must obtain your direct written consent before settling a claim on your behalf.

Consent to settle is important because it allows you to play an active role in the handling of your case. It gives you a voice in your defense.  Make sure you've read your malpractice insurance policy to know your rights when it comes to matters of individual consent or engage with a knowledgeable insurance agent to help.

Conclusion

It's important for physicians contemplating hospital employment to understand the issues surrounding their malpractice insurance coverage at the onset of employment, during employment, and after employment has terminated. The time to ask those questions is before accepting any offer and signing your contract. Take the time to educate yourself and work with a trusted advisor (attorney or insurance broker) to make sure you understand the implications before taking the next step.

Changes in the Indiana Malpractice Landscape

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What every doctor needs to know in 2019

Medical malpractice laws can vary widely from state to state, particularly as it relates to statutes of limitations, the legal process, liability, and damages.  Luckily for our Hoosier healthcare providers, Indiana is one of the best states to practice medicine in.

In 1975, Indiana was the first state in the nation to implement malpractice reform via the Medical Malpractice Act (MMA), a seminal feature of which is the Patient’s Compensation Fund (PCF).  The MMA offers protection to both patients and healthcare providers and has helped improve malpractice insurance rates, quality of coverage, and patient access to care.

One of the most important aspects of the MMA is the cap, or limit, on the amount of damages that can be recovered in a medical malpractice lawsuit.  The cap has been raised twice since 1975 and, pursuant to legislation passed in 2016, will see two increases by July 1, 2019. 

The first increase to the malpractice cap took effect on July 1, 2017.  Malpractice claims that arise after that date are subject to a cap of $1,650,000, with providers responsible for the first $400,000 and the PCF providing excess coverage to a maximum of $1,250,000. The cap is set to increase again on July 1, 2019 to $1,800,000, and providers will need to carry a $500,000 primary limit and the PCF will provide an excess limit of $1,300,000. 

Primary Limit INPCF Limit Total Cap on Damages

< July 1, 2017 $250,000 $1,000,000 $1,250,000

July 1, 2017 to June 30, 2019 $400,000 $1,250,000 $1,650,000

July 1, 2019 + $500,000 $1,300,000 $1,800,000

 

What does this mean for you?

Whether your malpractice insurance policy renews before or after July 1, 2019, your carrier should automatically increase your policy limits to match the new amount on that date. Generally, premiums are not adjusted mid-term, but it is possible that your rate may change at the next year’s renewal.

If your malpractice insurance policy renews on July 1, 2019, your policy limits will be updated at renewal to match the new amount. It is possible that your rate may change at this time.

Comparing malpractice insurance options is a healthy exercise for all practices – from the solo provider to the large, complex healthcare network; and luckily there are resources available to help you do the legwork. Leveraging the expertise of a qualified independent insurance agent gives you access to multiple carriers and options, ensuring that you are getting the best coverage at the best price. 

Take this opportunity to re-assess your own malpractice insurance coverage and make sure that you’re prepared for 2019 and beyond.

Ready to get started? Contact us today.

Who Needs Medical Malpractice Insurance?

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Interacting with patients on a daily basis exposes you, your employees, and your practice to professional liability.  Generally, any provider of healthcare services (or anyone that provides direct/indirect patient care) needs medical malpractice insurance.  This includes doctors (medical students/residents/fellows), mid-level providers, allied staff, and their affiliated entities.  In most states, it is mandatory for doctors to carry malpractice insurance; furthermore, many hospitals require it in order to have privileges at their facilities.  It is also common for healthcare insurance plans to require any doctor who participates in their program to have malpractice insurance. 

Bottom line: It is wise to carry malpractice insurance, whether it’s required of your or not, due to the likelihood of you having a malpractice claim sometime in your career.

 

Questions to Ask

As you look for the right medical malpractice insurance coverage, work with your agent to determine:

1) Who needs to be insured?

2) In what capacity should they be insured? (individual or shared policy)

3) At what level do they need to be insured? (limits)

 

Key Considerations for Determining the Right Coverage

Insuring the Practice

In the event of a malpractice claim, many people can be named, including the “name on the door” i.e. the practice, itself. Corporate coverage is a frequently overlooked item when determining who needs to be insured. The practice has vicarious liability exposure that must be taken into consideration, as it may be held responsible for the acts of an employee committed within the scope of employment. Talk to a knowledgeable insurance agent to make sure that all affiliated entities are properly insured; such as solo corporations, DBAs, or any legal entity name that is affiliated with your practice.

Shared vs. Individual Policy Limits

After you have confirmed who needs to be insured, you’ll need to decide in what capacity they should be covered – individually or on a shared limit policy. Individual coverage gives the named insured their own unique policy and set of limits; whereas shared limit coverage is exactly what it sounds like, a policy that is shared among multiple people. It is generally recommended that doctors and higher-risk mid-level providers (such as CRNAs, Midwives, PAs, or NPs) carry their own individual policy limits; however, you can discuss all the available options with your agent to determine what is best for your practice. Most corporate policies will include coverage for nurses and allied staff on a shared limit basis, but you usually have the option to carve any of those providers out and insure them separately, if you feel that the risk necessitates it.

Malpractice Policy Limits

You’ll also need to decide how much coverage (what limit) is appropriate. Limits vary by state – some states have standard limits that all providers carry, and others allow you to select your own level of coverage. When determining the policy limit that is right for you, be cognizant of the varying levels of risk within your practice and be sure to comply with the requirements that may be imposed by your hospital or credentialing organization. It is possible for one provider to carry higher limits than another within the same practice, but work with your agent to ensure that the level of coverage is appropriate and acceptable with the carrier.

Tips for Mid-level Providers, Medical Students, Residents, and Fellows

Oftentimes providers do not have a choice when it comes to their malpractice insurance, particularly if it is provided for them through their employment, medical school program, etc. While you may not be able to control the type of coverage and carrier that you are using, be knowledgeable on the above topics so that you understand how you are covered in case you are ever named in a malpractice lawsuit. Be sure to obtain a copy of the policy under which you are covered and keep record of the dates of your employment. If you ever have questions about your coverage, don’t hesitate to ask your practice administrator or the appropriate person at the medical school/residency program – or contact a knowledgeable malpractice insurance agent.

Additional Coverage to Consider

Beyond medical malpractice, it may be prudent to consider billing errors & omissions coverage, cyber liability coverage, and medical director coverage, among others. Talk to your malpractice insurance agent to determine the right coverage options for your practice, and as always…the experts at Aegis are happy to discuss your unique practice needs to help you find the right malpractice coverage solution!

5 Simple Ways to Improve Bedside Manner

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Bedside manner plays a significant role in a patient’s overall healthcare experience. Good bedside manner can lead to higher satisfaction scores, a stronger patient-provider relationship and can lower the likelihood of a medical malpractice claim. Here are 5 simple ways to strengthen your relationship with patients and improve your bedside manner:

 

1.       Use Their Name: Using a patient’s name shows that you see them as an individual, and that you care enough to know who they are. It encourages them to be a part of the conversation about their health and helps build rapport. And if you don’t know how to pronounce their name – just ask! Showing your “humanness” can make you more relatable.  

2.       Introduce Yourself + Explain Your Role: When meeting a patient for the first time, be sure to introduce yourself and explain your role in their care. Take time to share how you’ll be working within the healthcare team so they know what to expect during the course of their treatment. If you are a specialist who is brought in for a consultation, it’s important that this is expressed to the patient so they do not feel abandoned or insignificant if you don’t visit them again.  

3.       Sit Down + Be Cognizant of Body Language: Sitting down next to a patient builds more connection. Instead of towering over them, it demonstrates that you are working “with” them and helps them feel valued and appreciated. Avoid defensive poses such as crossing your arms or giving the impression of being rushed (checking your watch or pager frequently). Being relaxed and confident in your body language will help the patient feel more relaxed and confident.

4.       Show Empathy + Listen: Taking a few extra minutes to get to know your patient helps form a better patient-provider bond. Listen for clues about their life and comment on them. For example, if your patient mentions plans for an upcoming vacation, say, “Tell me about your trip, that must be so exciting.” Seems simple but it’s impactful… and it’s another way to show your patients that you really care. When patients trust their providers and feel like they are heard, they are more willing to openly discuss an issue and they tend to feel happier and more understood.

5.       Offer Reassurance: Put yourself in your patient’s shoes. What might be a routine diagnosis for you could be a life-changing event for them. Be patient, observe their reaction and be available to answer questions ongoingly. If a patient mentions being worried about a procedure, use statements such as “I understand this must be scary for you.” Then offer reassurance and partnership statements such as “I am here for you” or “I will be with you every step of the way”.



5 Tips for Health Care Providers after an Adverse Outcome

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Adverse events can be unavoidable in the practice of medicine. Here are some tips for you to consider should you be involved in an adverse outcome:

1.      Talk to the Patient or Family (and remain accessible)

Speak with the patient and family members as soon as possible after an adverse event. Explain the situation and answer questions factually and directly. Show compassion and offer emotional support. Try not to be defensive, even if their remarks are hurtful or accusatory.  Be accessible for follow-up questions or further explanations – oftentimes there are more questions after the family/patient has had time to process things. Being absent or “hard to get hold of” leads to patient frustration.   

2.      Don’t Play the Blame Game  

It’s ok to acknowledge and apologize for the patient's emotional distress, but make sure that you do not accept blame or point the finger at anyone else.  Do not speculate with the patient as to how or why the adverse outcome occurred. Speculation only leads to further issues. Review the medical records and meet with the healthcare team to discuss the situation and what needs to be done in response. Coordinate with your medical provider colleagues to ensure that communication is consistent and that patient needs are being met.

3.      Contact Practice Administrator / Risk Manager

Don’t delay in contacting your practice administrator or risk manager. Be factual in explaining the situation so that you can determine the proper next steps. Contact your malpractice insurance carrier (to report the incident) or the FDA (in the event of a medical device failure), if appropriate. Proactively engaging your carrier and risk manager allows the team to “get in front of” any potential issue so that you can work together to resolve the situation as quickly as possible, to the patient’s satisfaction.

4.      Ensure Proper Medical Records

Record factual statements of the events in the patient’s medical record along with notes related to follow-up care. If you disagree with another provider, do not use the medical record to document your concerns; rather, thoroughly document the basis for your treatment. Do not backdate any entries in the medical record and avoid creating entries that could appear self-serving. Remember that medical records are admissible in court. Avoid writing anything in the file that is unrelated to the care of the patient (e.g. “family is mad” or “legal team notified”).

5.      Consider write-offs / no overly aggressive collections

In the event of an adverse outcome, it may be prudent to consider waiving all or part of the patient’s medical bill. Before proceeding with this option, however, be sure to discuss it with your malpractice insurance carrier and legal representative. While some patients will be satisfied with this result, others may be inclined to sue, regardless. Be considerate of collection call techniques. A slightly disgruntled patient could be further agitated with overly aggressive collection calls. 


Understanding the Medical Malpractice Claim Process

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Whether you are a new grad or a veteran healthcare provider, if you have never been involved in a malpractice lawsuit before, you may be curious as to what goes on in a typical claim. This article highlights the key events in a medical malpractice action and is intended to provide you with a better idea of what to expect if you are ever sued for alleged malpractice.

Key events in a Malpractice case

Malpractice cases typically begin with an adverse event during a procedure or medical event, or with the eventual discovery of an adverse outcome associated with the previously received treatment. Such discovery can sometimes come years after the procedure or medical event. The injured patient may choose to bring a lawsuit by filing what is known as a “Complaint.”

After a complaint is filed, the medical provider must be given notice of the claim. This is typically accomplished via certified mail. If you are named in a lawsuit, you should promptly notify your practice administrator, hospital risk manager, or the designated in-office person. You should also notify your malpractice insurance carrier.

Once the carrier has been advised of the suit, it will open a claim, collect preliminary information, and assign a defense attorney to represent your interests. The defense attorney will be your primary point of contact during the life of the lawsuit.

The defense attorney, working with the carrier, will collect data to assess the merits of the plaintiff’s claims. On the basis of the gathered information, the insurer will set a “reserve amount,” which is money that is earmarked for the eventual claim payment.

Throughout the litigation of the lawsuit, you will consult with your defense attorney and the carrier to determine how best to proceed. If your policy has a “consent to settle” provision, the carrier must obtain your consent before it can settle the claim.

If a pretrial settlement is pursued and an agreement is reached with the plaintiff, the plaintiff is paid the agreed-upon sum, in exchange for a release of all claims and a dismissal of the lawsuit.

If the case goes to trial, a jury will determine whether to render a defense verdict in your favor, or a verdict for the plaintiff. If the latter, the jury can award a monetary judgment that is typically paid by the insurance company. When the judgment is paid and satisfied, the claim is closed.

Malpractice claims that do not settle pre-trial generally take 18 to 36 months from the date suit is filed to reach trial; however, in some states, it can take 5 years or more.

Tip: Be proactive after an incident or adverse event – contact your practice administrator and malpractice carrier even if you have not yet received a formal claim notice. Most malpractice insurance companies have risk management programs in place and can provide guidance and suggestions on some immediate steps that you can take after an incident occurs. It may be possible to avoid further escalation of an issue if it is dealt with promptly and with the guidance of your insurance carrier and legal counsel.

What is Medical Malpractice?

Definition of Medical Malpractice

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Medical Malpractice is professional negligence by a healthcare provider that deviates from the accepted standard of care, resulting in harm.

Overview

The Journal of the American Medical Association (JAMA) has noted that medical malpractice is the third leading cause of mortality in the United States after heart disease and cancer. Forbes magazine recently reported that the cost of medical malpractice in the United States is approximately $55.6 billion a year. Medical malpractice is without a doubt, one of the most critical issues for healthcare and arguably one of the biggest “pain points” for providers today.

Medical Professional Liability Insurance, also known as medical malpractice insurance (or medmal insurance) provides coverage to physicians, surgeons, and other healthcare professionals for liability arising from a medical malpractice claim. In simple terms, it protects healthcare providers against claims filed by patients or their families who sue them, alleging harm by their medical negligence or harmful treatment.

The Standard of Care in Malpractice Cases

Healthcare professionals are not expected to be perfect – none of us are! They are, however, required to meet the appropriate standard of care; what a reasonably competent and skilled provider, with similar background and training would have done in the same situation. In order to prove that the standard of care was or was not met, attorneys on both sides may bring in an expert witness to testify. 

If, for example, an OB/GYN is being accused of a medical error, another OB/GYN or specialist in the given field may testify to show that the doctor failed to do something that he should have done or did something that he should not have done.

Establishing the Elements of Proof

A plaintiff alleging medical malpractice must prove the following:

1.     A duty of care was owed by the healthcare provider to the patient

2.     The duty was breached (standard of care was not met)

3.     The breach caused the injury in question

4.     The injury resulted in damages

The burden of proof lies with the plaintiff and their medical malpractice attorneys in a malpractice lawsuit and all 4 elements must be proven for a plaintiff to prevail at trial.

Physicians, dentists, nurses, and healthcare professionals owe a duty of care to those who seek their treatment. This element of proof is rarely disputed in medical malpractice cases, because once a provider agrees to treat a patient, he or she has a professional duty to provide competent care. More importantly, the patient must show that there was a real injury (physical or emotional) as a result of the alleged negligence from the medical procedure.

Causation is a critical element of proof in a medical malpractice lawsuit. While there may be injuries, if the injuries cannot be directly linked to the healthcare provider’s alleged misconduct, there is no case. There are several issues that can make causation difficult to prove in a medmal case, including:

·        Trying to separate the effect of an existing condition from the effect of the negligent medical treatment (did the doctor’s treatment cause the injury or was it already there?)

·        Predicting if the outcome would have been the same, regardless of the provider’s actions (a patient is treated for stomach pain and discharged in the morning, but dies of a stroke at home that evening)

·        Multiple factors attributable to the injury (many things could have caused the injury in question, but it cannot be directly linked to the provider’s care)

If all 4 elements are proven and the jury finds in favor of the plaintiff, a judgement is awarded to indemnify the patient for their losses. 

Types of Damages in a Malpractice Case

There are 2 types of damages in a malpractice case – compensatory and punitive.

Compensatory damages

·        Economic (examples: loss of income, medical expenses, future medical care)

·        Non-economic damages (examples: pain and suffering, scarring, humiliation, permanent loss of an organ or limb, reduced enjoyment of life, etc.)

Punitive damages

Punitive damages are only awarded if the provider’s conduct is found to be willful, wanton, and/or reckless. Whether a healthcare provider can be liable for punitive damages, which are intended to punish a defendant, varies from state-to-state.

Most malpractice insurance policies exclude coverage for punitive damages. Likewise, liability that arises from sexual misconduct, criminal acts, and inappropriate alteration of medical records is also typically excluded from coverage.

Summary

Medical Malpractice Insurance provides coverage to doctors and healthcare professionals for liability arising from allegations of negligent care. Medical malpractice occurs when there is a medical error by a healthcare provider that deviates from the standard of care, resulting in harm to the patient. Standard of care is what a reasonably competent and skilled provider, with similar background and training, would have done in the same situation. A health care professional is not expected to be perfect or practice perfect medicine.

A patient alleging medical malpractice must prove 1) duty of care by the provider, 2) a breach of the standard of care, 3) an injury proximately caused by the breach; and 4) the injury resulted in damages. The burden of proof lies with the plaintiff and their malpractice lawyers in a lawsuit and all 4 elements must be proven for a plaintiff to prevail.

If a jury finds in favor of the plaintiff, or if a malpractice case is settled, damages are awarded to indemnify the patient and/or their family. Damages can be compensatory (economic or non-economic), and in certain situations punitive. Most malpractice policies do not cover punitive damages or those related to sexual misconduct or criminal acts.

Malpractice Insights (the blog for Aegis Malpractice Solutions, LLC) is written to provide general information on medical malpractice insurance and related topics. It is not intended to provide specific legal/insurance advice. By using this blog site you understand that there is no insurance/client relationship between you and the Blog/Website publisher. The Blog/Website should not be used as a substitute for advise provided to you by your insurance agent or from a licensed professional attorney in your state.

Welcome!

Welcome!

Welcome to Malpractice Insights – the blog for Aegis Malpractice Solutions. Our goal with this blog is to share information that will help you better understand medical malpractice insurance and empower you to make the best decisions for yourself and your practice. So be sure to subscribe and follow us on your favorite social media platforms to stay in the loop and join in on the conversation!