A Physician’s Guide to Protection from Medical Liabilities
You joined the ranks of healthcare professionals to improve the lives of your patients. You would never do anything to put their health at risk. Unfortunately, there are times when your patients don’t agree.
As a physician, you are at risk of malpractice suits from the moment you enter the health care system.
These claims can come when you least expect them, and at the times you are the least prepared. Doctors must do their utmost to protect themselves from medical liabilities, or they risk not only their financial future but also their professional lives.
Protecting yourself from a malpractice lawsuit involves careful attention to your medical practice.
According to Rosenbaum and Associates, physicians have the highest medical malpractice claims, with over 85,000 reports between 2009-2018 (in the United States). The New England Journal of Medicine also claims that 99 out of 100 physicians will face a malpractice lawsuit by the age of 65.
Considering these staggering numbers, you don’t want to leave yourself vulnerable for what seems inevitable. If you work as a medical professional for any amount of time, it isn’t if you will face a medical negligence claim, but when.
Having the right liability coverage to face this daunting process can help you come out of it with your finances and reputation intact.
What Help Can You Expect From Your Insurance Against Medical Liabilities?
Getting wind of a possible medical malpractice insurance claim against you is nerve-wracking, and it can be hard to know the best course of action. You may not understand what is expected of you or what you should expect from your insurance coverage company.
Duties of the Malpractice Insurance Carrier
Having medical malpractice insurance means that you are not alone in this. Your insurance carrier has specific duties they are required to provide on your behalf.
1. Defense and Indemnity
Your liability insurance carrier is required to defend you with legal counsel. The cost of this legal counsel is also their responsibility.
If your case ends up being a suit against you that you settle through mediation or you are served a judgment in court, your insurance carrier must also pay for this amount as covered by the policy limit.
2. Retain Counsel
Not only is the insurance carrier responsible for paying attorney fees, they are also responsible for helping to find a lawyer to defend you. This doesn’t mean that you have to use the lawyer they recommend.
If for any reason, you are not happy with the lawyer they find, you can request that they provide a new one. You can even ask for a specific lawyer. Of course, an agreement must be made by the insurance carrier as well.
Once you have been provided a lawyer, if you get any additional counsel, you are responsible for paying their fee.
On your end, you have certain duties that will ensure that your malpractice insurance carrier covers you throughout the process.
1. Notify Your Carrier
You must notify your carrier as soon as you can that you have a medical services case against you. Even if you have a suspicion that you may be at risk, tell your insurance agent about it.
The earlier you notify your insurance of the claim, the more you will ensure that they cannot deny coverage.
2. “Cooperation Clause”
During the entire process, you must cooperate with your defense attorney by being honest and forthcoming with the facts.
You must also be on board with going forward with the legal claim and listen to their counsel. If you fail to do this, you may be at risk of losing coverage from your insurance.
When You Receive a Pre-Suit Notice
When you are in the pre-suit notice period, avoid having knee-jerk reactions to any actions brought against you. At this time, you do not have legal counsel to help you determine your best course of action.
Having advance knowledge of this process and the expected outcome can help you protect yourself from making any rash decisions that could potentially do you more harm than good.
The receipt of a notice letter is not a lawsuit yet. It certainly isn’t good news, but this does not mean that a claim has yet been filed against you.
This letter is written by the plaintiff’s attorney, merely giving notice of the intent to file.
Even though this notice does not mean that a claim is filed against you, it would be in your best interest to proceed as if you believe that there will be one shortly. In these types of instances, time is of the essence.
Notify Your Insurance Carrier Immediately
Once you have been issued a notice letter, the best thing to do is contact your insurance carrier right away. This ensures your liability insurance premium provides you coverage, and it also gives them more time to prepare.
It’s also advised that you notify your insurance carrier even if you don’t get a letter, but you believe one is coming. A few clues that this is on the horizon is if you have received petitions, citation, or discovery requests. Even a conversation with a patient can be enough to believe that a letter is coming.
Do Not Try to Speak to the Plaintiff’s Attorney
Often, when you receive a letter that catches you off guard (most health care providers are extremely surprised when they are the recipients), the initial reaction is to speak to the plaintiff’s attorney on your own behalf.
Whether this is because you are sure there has been a mistake or if you believe you can settle things without the help of a professional, taking this step on your own can do more harm than good.
Everything that you say to the plaintiff’s attorney can be used against you. You may feel like you can settle things with your patient easily, but if they have come so far as to file a suit against you — chances are that they are beyond talking things out.
Pull the Patient’s Chart
As soon as you receive notice, you should pull the patient’s medical records and put them in a safe place. In no way should you make any alterations, deletions, or changes to this chart at this time.
If it appears to have been changed at all during a claim, you can get into a lot of trouble. This will make it look like you were trying to hide evidence and if you do end up going to court, you will undoubtedly lose. Do not underestimate the ability to tell if a chart has been altered.
Keep the Claim Private
The emotional stress of the whole ordeal will be high, and you may feel like talking to others about what is happening, but it is essential not to discuss the case with anyone. Don’t even discuss it with your liability insurance agent. Simply tell them that you have been sued and need an attorney.
You may feel the need to seek out a confidant or friend in the profession that has been through this before. That’s understandable, but do not discuss the case with colleagues. If they are called as a witness, they will be under oath and may have to divulge information that you discussed with them.
Only discuss matters of the case with the attorney provided to you by your professional liability insurance carrier.
Related: Download the Physicians’ Guide to Malpractice Insurance.
Tort of Negligence
“Medical malpractice is defined as any act or omission by a physician during treatment of a patient that deviates from accepted norms of practice in the medical community and causes an injury to the patient. Medical malpractice is a specific subset of tort law that deals with professional negligence.”
For a case to be considered viable, it has to meet the tort of negligence. In order to win a case, the plaintiff has to prove certain findings.
The plaintiff must establish four findings. Unlike criminal cases where the plaintiff must prove guilt beyond a reasonable doubt, the burden of proof in medical malpractice cases is more than a 50% chance of guilt. So the plaintiff must prove these four findings to a more than likely scenario of truth.
1. Duty of Care Was Owed
This is usually the case and easy to prove. This simply means that as a primary care doctor, you had the duty to provide patient care.
This is never a bad thing unless, of course, you didn’t intend to provide medical care. It is possible to simply state something in passing to a neighbor and be sued if they took your advice.
2. Duty of Care Was Breached
This is most often the area that the plaintiff’s case will be based on. This means that they must prove that you did not meet the standard of care.
The standard of care is simply what most doctors would do if in the same situation. Of course, the standard of care must be backed by a professional. In which case, you can defend yourself from this if your actions were in line with the standard of care with the testimony of an expert.
3. Proximate Cause
The plaintiff must also prove proximate cause. This means that it was the physician’s action that caused medical injury to the patient.
4. Damages Due to the Breach Proven
And of course, the plaintiff must also show documentation proving that the patient did indeed suffer a medical error due to the breach in the healthcare quality.
Related: Learn more about your Malpractice Insurance Options.
Liability Risk Management
A great way to protect yourself from malpractice litigation is to stay educated on the most up to date and effective form of risk management in how you practice medical treatment and patient safety.
Liability risk management classes are often offered by the insurance carrier. These classes are often coupled with a reduction in premium costs. Which makes sense since they are your medical malpractice liability insurance carrier; any suits that come against you will result in a loss on their part.
The best habit to develop to protect yourself from malpractice cases is to learn to make proper documentation of each visit.
You can document your thought process during diagnosis. Any shared decision-making you made with a health professional colleague or the goals and expectations of any health care quality treatment.
Along with written documentation, it can also be helpful to discuss your notes with the patient and make a note that you did so. This way, if you do get sued, your informed consent notes may prove you innocent.
The Four “C”s
The four “C”s of proper note-taking includes:
- Excellent communication with the patient
- Showing compassion for the patient
- Demonstrating competence by following protocols
- Charting well with accurate, objective, and legible documentation.
Mediation is the most common course of action in all malpractice suits. Arbitration is another typical result. Both are processes involving coming to a settlement outside of court. Going to court is lengthy, stressful, and expensive. Neither side wants to end up there.
There are different settlement options outside of court.
Most often, a settlement is a compromise met by both sides agreeing upon a set recompense for any damages. The agreement does not necessarily admit guilt. It can be written in such a way that the physician only agrees to the settlement to avoid the stressful and time-consuming process of going to court.
Any solution should also include a signed motion by the plaintiff for nonsuit so that they cannot come back and sue you again after the settlement is awarded.
You can agree on a voluntary nonsuit. Although this rarely happens, if you present your case to the plaintiff and either they or their client believes they don’t have a chance at winning, they may drop the charges.
The physician’s attorney can file a motion to dismiss if the plaintiff’s attorney fails to provide any documentation proving proximate cause. This is usually done with expert testimony.
A motion for summary judgment is basically asking the judge to review the evidence that the plaintiff holds. This is the typical course of action if your lawyer does not believe that the plaintiff has supporting evidence or that the evidence is faulty. If upon review, the judge finds that the plaintiff’s case is too weak, they could dismiss the case.
Procuring Top Notch Malpractice Insurance
When it comes to choosing which liability insurers to go with for medical malpractice insurance, the cheapest is not always the best choice. The best malpractice insurer will give you the best protection.
We have extensive experience with all of the leading liability insurance coverage companies, and we know the pros and cons of each. Let us help you find the right medical malpractice liability policy for your needs.
The most important thing to remember when being faced with medical liabilities is that you don’t have to face them alone.
There is another often overlooked aspect of protection in liability insurance premiums — malpractice tail coverage. Learn more about how malpractice tail coverage is essential for comprehensive protection from malpractice suits.
We can help you get the best coverage in medical malpractice insurance so that you know that when this inevitable occurrence pops up, you will be protected. Contact Physicians Thrive to find your policy now.
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