A*******s
发帖数: 9638 | 1 Malpractice insurance is essential for practice. But someone says if you don
't have the insurance, you may not get sued since there is no money to lure
the attorney. Is that true?
Let's take a look at this interesting article:
What is colloquially referred to as “going bare”.
First, let’s agree to never use that term. It has its origin in the conduct
of doctors who literally carry no coverage and hide their assets (or so
they think…). It is unethical and it is stupid.
What we are talking about here, despite its colloquial name, is self-
coverage rather than being covered through a third-party insurer.
The first issue if you are considering this is to determine if it is even
permissible for you.
Colorado, Connecticut, Kansas, Massachusetts, New Jersey, Rhode Island and
Wisconsin require physicians to have minimum levels of professional
liability insurance, ranging from $100,000 to $1 million per occurrence and
$300,000 to $3 million in the aggregate per year.
Short of that strict requirement, other states (Indiana, Louisiana, Nebraska
, New Mexico, New York, Pennsylvania, and Wyoming) require physicians to
carry minimum levels of professional liability insurance to qualify for
state liability reforms, including caps on damages, or patient compensation
funds.
Even if your state has no rules on this matter, your hospital or payors
that you participate with may mandate that you have a minimum level of
insurance coverage.
If none of these is the case, you are ready to consider if self-coverage is
appropriate for you.
Let’s take a look at pros and cons involved in making the decision to do so.
1. “Deep pockets”
Many doctors believe that they become desirable targets if they are well-
insured. This is an extrapolation from the fact that if there is a legal
basis to bring a facility or group into a case it will likely be a “deep
pocket” source.
However, the belief that doctors are sued based on their ability to pay an
award is not a correct one.
The actual selection of defendants is directed to the fact that the
plaintiff bears the burden of proof. Physicians will be named because the
chart indicates that they had a causative role in the events the plaintiff
is claiming constitute negligence.
The plaintiff’s attorney often has no knowledge of what the doctor’s
coverage situation is. For example, in my state of NY that information will
not come in from the carrier until after the case is commenced. In that
setting, all doctors will be assumed to be insured to standard levels, so
the doctor without such coverage is actually at a deficit.
In states that make coverage information available, such as Florida, where
any member of the general public can go to the Department of Health website
and read a declaration by the doctor as to the extent of their coverage (
albeit one that does not differentiate between self-coverage and coverage
through a third party) the attorney will have ready access to the
information. However, that is still a non-issue in making a determination
about a defendant because a state minimum (e.g.; an irrevocable secure
letter of credit for at least $500,000 in New Jersey in lieu of a tail if a
tail is not available, a line of $250,000 per claim and $750,000 per year in
Florida if you have hospital privileges) must be met and it will itself be
quite substantial.
The idea that a defendant is less desirable because they are covered for $
250,000 - $500,000 per case through a personal mechanism rather than $1
million per case through an insurer will actually only matter in a case that
has extremely high damages, and even in that case the lower coverage will
not prevent the doctor being named if the chart suggests they have a
causative role in the harm the plaintiff suffered. Rather, the maximum of
the personal coverage will be sought and then the doctor will be responsible
for paying the excess (more about this next week) if they lose.
2. Saving money upfront
Rather than theoretical gamesmanship about being named in a case, most
doctors who opt for self-coverage do so because their annual malpractice
insurance premiums are so costly.
However, that critical fact having been noted and fully respected, it is
still worth considering some countervailing issues, which we will look at
now.
3. Defense costs
Most doctors tend to think of their professional liability coverage solely
in terms of its indemnification aspect and forget that it also has a defense
aspect.
The cost of defending a case from inception through trial, and possibly
through appeal, is very high - potentially into the $100,000 range - and a
defense attorney who is privately hired and so is without access to the
carrier’s resources is probably going to be running the case even more
expensively on that basis alone before their likely fee of $400 an hour is
considered.
In this regard it is absolutely essential to bear in mind that the
irrevocable letter of credit that a state requires uninsured doctors to have
is only payable to the doctor upon presentation of a final judgment or
settlement and only for the amount of the award. In other words, the doctor
must shoulder the defense costs over the course of the action and the
letter of credit will not reimburse them at the end.
Some carriers do offer “defense only” policies that will cover costs of
defending a case up to $100,000 but it is important to remember that in that
setting you are not just going to get money for whatever you spend out on.
The carrier will be the arbiter of what it considers a justified expense
and that it will be generous should not be assumed. You are more than likely
going to be entering a two-pronged conflict: one with the plaintiff and one
with the cost insurer while you are actually on trial.
…and that is if the carrier is even still there. These companies tend to
be small start-ups and only one company offering this type of coverage is
even rated by A.M. Best.
Another alternative, depending on your state, may be a PPO type plan for
discounted legal fees but, again, the very substantial rates charged by the
quality of lawyer that you want in your corner makes even a discount of only
limited value over the course of a case from Discovery to verdict to
possible appeal.
…and that is if the lawyers who are in that plan are even the quality of
lawyer that you want, something you should not bet on because the best firms
don't need to get involved in discount plans.
Meanwhile, unlike the insured doctor whose case is run by the carrier and
the defense firm that it hired, with the doctor only being alerted when he
or she is needed for a given step, the self-defending uncovered doctor is
going to have to spend a great deal of personal time on their case, time
taken away from earning in their practice.
This all having been said, doctors facing premiums that themselves
approximate the expected price of a trial that itself may never occur may
still determine that it is in their interest to self-cover, but this
decision should be made only after the consideration of the entire scope of
potential costs.
(4) Professional ostracization
This is going to be very dependent on whether your state is accepting of
self-coverage as, for example, Florida is.
If it is not, not carrying third-party malpractice coverage at at least the
$1 million/$3 million level may impair your credentialing by hospitals and
your acceptance by medical plans.
Unless you are in a state that has only several liability (i.e.; each person
must pay for only their own share of a damages award) you should also
consider the willingness of other physicians to engage in referrals and
consultations with you because they will not want to be in a position to
serve as your “deep pocket” if they are named in a suit with you and your
self-coverage falls short in a state that has joint liability or joint and
several liability. |
|
