Part 3 of 3
By Shawna Bertalot, CIC, ACI, President WisMed Assure
“Physicians in Wisconsin will soon be paying more for medical professional liability (MPL) insurance thanks to a cyclical “hardening” of the market.” (Excerpt from Part 1)
Three of every four primary
care physicians will be sued by a patient during the course of their career. The
numbers are even worse for specialties.
Which is why physicians as
a whole are not willing to take the chance they will be among the lucky few who
never get sued. To guard against the financial impact of a law suit, they purchase
Medical Professional Liability (MPL) insurance. But, as Wisconsin physicians begin
to experience rising MPL premiums along with greater underwriting scrutiny, the
question becomes, “How can I get the coverage I need and avoid paying too
The answer is to play
defense and offense at the same time; defense by reducing the chances of being
sued and offense by managing your insurance purchase.
simple: don’t get sued
Well, if only it was that
simple. In reality, a physician can do everything perfectly for a patient and
still be sued because of a poor outcome.
Legally speaking, to be successful in court, a patient’s legal
team has to prove three things:
physician committed a breach of duty by not providing medical care another
healthcare professional would have provided
- The patient suffered emotional
or physical injury
- The physician caused
the damage to the patient
But, even when one or more of these three are not provable in court, no physician wants to end up in court in the first place… nor does their MPL insurer want to pay the legal bills.
How’s your Patient CRED?
Playing defense could be as conceptually simple as applying the “CRED” concept to your medical practice:
C – communication
R – relationship
E – education
D – documentation
A breakdown in patient-provider communication
is a leading contributor to malpractice lawsuits. While it is absolutely
essential to obtain adequate informed consent, doing so as part of an open,
two-way conversation with the patient and their family when appropriate goes a
long way to helping you avoid your day in court.
By taking the time answer questions, address
concerns and openly discuss potential complications, you can avoid false
assumptions and miscommunication while building patient confidence.
Patients and families are much less likely to sue a physician when they feel
they have a good relationship. Even if you deliver the best possible care, without
a good relationship, its perceived value and effectiveness can be significantly
diminished in the eyes of your patient.
That’s why approaching each patient with
compassion and empathizing with their concerns and condition throughout the
cycle of care, is one of your best defensive strategies. Most of the time all
it takes is for you to stop for a few seconds and truly engage with patients.
Making eye contact, actively listening, just being there for a moment instead
of worrying about where you have to be next, can make all the difference.
When a patient or a member of their family doesn’t understand the diagnosis,
treatment or regulations, it is far too easy for them to feel you’ve done
something wrong or inadequate.
If you don’t educate them, they instead rely on assumptions, what
they read on the Internet, and what their cousin in Oconomowoc
heard on the Doctor Oz Show.
To protect yourself, to play strong defense, take
time to educate your patients and their family so they understand why
you are recommending all tests and treatments ahead. Plus, they need to know what
to expect including risks and possible side effects, recovery times, and
Clearly explaining why and what helps you
avoid having to justify your actions and decisions by making the patient and
their family part of the decision-making process.
law suits occur when a patient thinks they’ve been harmed and are supported by
others in making a case against a physician. Defense then is conceptually
simple; you must accurately document the patient’s condition and why your
diagnosis and treatment decisions were made.
But, in practice, it’s a
lot more complicated. One complicating factor you cannot afford to overlook are
the decision-making (or at least decision-influencing) conversations you have with
patients and their families. When you use the other three elements of Patient
CRED, these conversations gain importance and the need to document them is
Going on the offensive
Inevitably, you will pay more for MPL insurance. But, to avoid an
even worse-case scenario, where you can no longer find adequate coverage at
all, there are several things you can do.
As the market
hardens, underwriters will begin to clamp down on exceptions. This means that
if your risk management practices and policies are irregular, you will pay a
lot more and your options could be severally limited.
to protect their profits, some insurers may reduce claims and risk management
personnel and services. And some may sell directly and not through licensed
insurance agents who can help you play offense. Which makes it even more
important for physicians to make sure they have their act together when it
comes to risk prevention.
Here is a risk management
checklist you can use to improve your offense and be seen as a preferred risk to
an insurance company.-
- I understand and have
taken advantage of the premium discounts and credits my insurance company
offers. Yes No
- I regularly
participate in risk-reduction CME courses and seminars and receive discounts
from my insurance company for doing so.
Yes No Not Sure
- I utilize electronic
medical records in my practice and receive discounts from my insurance company
for doing so. Yes No
- My organization
pursues ongoing risk-management efforts such as claims management, quality
initiatives, and risk assessments. Yes
No Not Sure
- My organization has an effective peer-review process. Yes
No Not Sure
- My organization has practical
guidelines for medical record documentation and consent forms. Yes
No Not Sure
- I (we) have chosen
the location for our organization by balancing market/patient accessibility and
location-specific insurance costs.
Yes No Not Sure
- When completing
annual insurance renewal forms, I am careful to answer all questions as
accurately as possible and include any and all substantive changes to my
practice (e.g.: changes to hospital staff privileges,
joining a managed-care network, gaining specialty board certification). Yes
No Not Sure
- I understand the difference
between claims-made and occurrence coverage and have chosen the coverage most
appropriate for my situation: Yes No Not
It takes two to Tango
Playing offense goes beyond
implementing risk management strategies. It also means playing tough with your
insurance company. Given that the likelihood of a law suit occurring is so
high, you need to be aware of your insurance company’s track record when it
comes to managing claims.
Here are some important
questions to ask:
- How many law suits do
they defend annually?
- What is the percentage
of cost they spend on defense vs. settlement?
- How does their
success rate in court compare to the national average?
Nationally, only about five
percent of cases go to trial. And, of those, about 80 percent are decided in
favor of the physician.
What should you do now?
assuming your house is in order, you will want to look for stability and
security by renewing your coverage with a financially strong insurer; a
long-term player committed to the MPL insurance market place. This is where an
experienced broker can play a key role in helping you understand the quality of
the insurers willing to do business with you.
As the market
continues to harden, it is essential to seek the help and advice of an
experienced, committed advisor who can help you improve your underwriting
profile if need be and navigate your options.
If you would like to discuss this article or your insurance needs and concerns, please feel free to contact me.
Shawna Bertalot, CIC, ACI, President WisMed