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Healthcare Professional Liability Insurance

Physicians: Frustrated and Fighting Back

Charles Kolodkin | May 15, 2004

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Products that focus on "doing something about" disgruntled, problem patients and their trial attorneys seem appealing, but the current new products that put physicians on the offensive do not provide the results doctors are looking for. Physicians who are truly interested in reducing their medical malpractice risk would generally be better off by participating in periodic risk management training and interacting more effectively with defense counsel.

It is no secret physicians are upset at the high cost of malpractice insurance coverage. As insurance premiums continue their seemingly never-ending climb upward, many physicians are motivated to do something in response. The most common reactions are publicizing the problems of insurance affordability and availability, seeking rate relief from insurance regulators, and lobbying legislators for tort reform. But for those physicians interested in adopting even more aggressive positions, there are a few new products, each employing different tactics in the battle against the perceived unfair malpractice system.

New Tactics for Dealing with Patients

Some of the new initiatives being promoted to combat the malpractice insurance problems experienced by the medical community are designed to take the physician off of the defensive in the doctor-physician relationship. Physicians are being advised to evaluate a prospective patient's propensity to sue prior to accepting him. An additional recommendation suggests that patients be required to sign a form agreeing not to litigate should there be a problem with the care rendered. Such waivers not to sue often contain a provision that allows disputes to be taken to arbitration in order to stay away from the lengthy and costly litigation process.

Physicians have also been advised to avoid patients who have filed medical malpractice lawsuits in the past, based on the presumption that these people, on average, are inherently more litigious and that a person who has already sued a healthcare provider poses a greater risk to the physician, a risk the physician is best served to avoid. Earlier this year a database was introduced on the Internet called that tracked litigious persons, including patients who have filed medical malpractice claims, plaintiff attorneys, and expert witnesses testifying on behalf of claimants. The site allows a cautious doctor to check the database and determine whether a prospective or current patient had once had a dispute with a medical provider. The problem with this type of approach is the lack of differentiation made between those involved in "good" or legitimate cases versus those filing "bad" or frivolous claims. Some may not be surprised to learn that the website has gone on a hiatus, apparently due to both its controversial nature and its inability to detail the legitimacy of claims brought by patients.

Another new company, a bit more entrepreneurial than, is also addressing physicians' frustration with the litigation process by offering a product that claims to enable doctors to fight back against frivolous lawsuits. The product available from Medical Justice is a legal services benefit plan that is somewhat akin to insurance. The plan is designed to allow medical professionals to contest nonmeritorious medical malpractice claims filed against them by supplying physicians with the tools to file counter-lawsuits and counterclaims against plaintiffs, their attorneys, and/or medical expert witnesses who helped prosecute the initial case.

One key feature of Medical Justice is that covered members of the benefit plan are publicized through a database located on the Internet. Thus, possible plaintiffs will be able to determine whether a physician they are considering suing is protected by Medical Justice and likely to countersue. The threat of legal action being initiated against claimants is designed to have a deterring effect on frivolous lawsuits.

Average Cost of Defense Chart

Average Cost of Defense Chart

While the Medical Justice product is a benefit plan structured somewhat like insurance, it is not a substitute or replacement for medical malpractice insurance and may be more accurately viewed as a supplement to traditional malpractice insurance. Medical malpractice insurance coverage is structured to pay damages doctors incur arising from the rendering or failure to render medical care. This insurance pays for any judgments and settlements made on behalf of a physician to indemnify a claimant as well the expenses necessary to defend against these claims. Expenses include, among many things, the fees of the defense attorney hired to represent the physician, medical consultants engaged to evaluate the claimant's treatment and condition, and experts who provide testimony at depositions and at trial.

In contrast, the Medical Justice product covers costs related to examining the claims brought in nonmeritorious medical malpractice claims and pursuing appropriate legal redress. Although it is permissible for the physician's attorney to assert a counterclaim during the defense of the lawsuit, this rarely occurs. In the event a physician feels there was a frivolous lawsuit made, Medical Justice promotes that it will pay for an analysis to determine if the case was indeed frivolous. Should the analysis conclude the case was nonmeritorious, then an attorney will be retained to proceed with legal action against those responsible for bringing a frivolous action. Legal action can entail a lawsuit, a complaint to the professional society, or a request for disciplinary action. The Medical Justice program will fund up to $100,000 of the cost of pursuing these claims by the physician.

As one would expect, the program offered by Medical Justice has a cost. Pricing for the Medical Justice protection depends on the physician's medical specialty and practice location, but generally ranges from about $750 to $2,000 a year. Although this sum is considerably less than medical malpractice insurance premiums, it is not inconsequential and the product purchased merely supplements rather than replaces traditional liability insurance.

What Should Frustrated Physicians Do?

There is a certain level of helplessness physicians experience as they see malpractice insurance premiums accelerate and claim severity increase. Products that focus on "doing something about" disgruntled, problem patients and their trial attorney supporters seem appealing since they move doctors from the defensive side of the line to the offensive side. However none of the current new products seem to hold much promise to get physicians the results they are looking for. Physicians who are truly interested in reducing their medical malpractice risk would generally be better using their time and money by participating in periodic risk management training and interacting more effectively with defense counsel.

Risk Management

Risk management programs that emphasize such activities as comprehensive documentation will likely be more useful to a medical practice than a benefit plan funding a countersuit against frivolous litigation. Educating staff members and reinforcing such risk management principles as documenting all aspects of the office visit, the patient's medication history, test results, any telephone calls, and the process for obtaining an informed consent can provide very effective protection should a physician ever be summoned to court. A good chart with a complete medical record will be one of the doctor's best allies should an event turn into a claim.

Underscoring the need for maintaining excellent relations with patients will go a long way to reducing a healthcare provider's liability exposure. All employees in a medical practice should be attentive to the importance and need to communicate with patients compassionately and clearly. Patients should feel like the medical staff is responsive to their concerns and that they are not being rushed through an appointment. It has been said that a bad doctor with an excellent bedside manner is less likely to be sued than a good doctor with a bad bedside manner.

More Interaction with Defense Counsel

Sometimes bad things happen to good doctors, like being on the receiving end of a nonmeritorious lawsuit. Physicians caught in the complex world of litigation are often confused by the intricacies of the justice system. The discovery process during a lawsuit is indeed a time of discovery for most physicians. The meaning and implications of interrogatories, request for production, consultants' reviews, expert affidavits, and a myriad of motions are bewildering to those not routinely exposed to the legal system.

Typically a physician's experiences with his defense attorney are one of two varieties: (1) little to no real contact, with most communication filtered through secretaries and legal assistants; or (2) a tidal wave of paper unleashed on an overwhelmed physician with little explanation. It is not difficult to understand why physicians are so frustrated when they are made parties to a lawsuit.

Anytime a physician is a defendant in a lawsuit or is even threatened with litigation, it is advisable to develop a strong working relationship with the defense attorney. Although an insurance company customarily retains the services of the specific defense attorney and is responsible for paying expenses, it is the physician, and not the insurer, who is the attorney's client. In fact, the defense attorney has a strict duty of loyalty and must represent the physician-client's interests above all others.

Therefore, a physician should not be reticent to ask questions of the attorney, insist on receiving periodic updates on case developments, and seek explanations about claim strategy. Engaging in this type of relationship with defense counsel will do much to alleviate the feelings of helplessness or frustration a physician may have during the course of litigation. Moreover, should a physician find himself involved in a frivolous lawsuit, he can then have his defense attorney file the appropriate motions or requests for sanctions in a timely manner and in association with the ongoing litigation, rather than getting another lawyer involved after the fact as might occur under the Medical Justice type of programs. This more proactive method of "fighting back" not only is more cost effective and efficient in terms of time, but also holds a higher probability of success for the aggrieved physician.

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