Common Contract Issues and High Exposure Areas in Psychiatric Practice APPA Fall Conference MIT/ECP Track October 16, 2015

Transcription

1 Disclosures Common Contract Issues and High Exposure Areas in Psychiatric Practice Mr. Cash has no relevant financial relationships with any commercial interest. Charles D. Cash, JD, LLM Assistant Vice President, Risk Management Professional Risk Management Services, Inc. (PRMS) 1401 Wilson Boulevard Suite 700 Arlington, VA APPA Fall Conference MIT/ECP Track Point Clear, Alabama Objectives At the conclusion of this section, attendees will be able to: Identify important features of a medical malpractice insurance policy Recognize liability traps hidden in employment, EHR, and e- prescribing system vendor agreements Identify the highest exposure cases in terms of frequency and severity Utilize three risk management strategies to minimize professional liability exposure Agenda Common Contract Issues in Psychiatric Practice Insurance Managed care Employment Electronic health records High Exposure Areas in Psychiatry and Risk Management Strategies Suicide Medication misadventures Questions Sage Advice An experienced colleague An attorney An accountant/practice manager Join relevant professional organizations A trusted insurance professional Common Contract Issues in Psychiatric Practice 2015 Professional Risk Management Services Inc. (PRMS) 1

2 Types of Insurance Read Everything! Medical professional liability insurance Other types of policies General liability coverage Business owners policy Workers compensation Employment practices liability insurance Short & long-term disability insurance Life insurance D&O E&O Two Types of Medical Professional Liability Policies Occurrence Covers claims arising from events that occur during policy period Claims-Made Covers claims reported during policy period arising from events that occur during policy period Tail Coverage Can be $$$$ Entire amount due immediately TIP: If another entity pays for your claims-made policy, get it in writing that that entity will also pickup the tail coverage Tail Coverage MD took job as employee of group Employment contract: employer was to provide and pay the premium for malpractice insurance coverage covering employee Policy was claims-made MD left group Patel v. Assoc. in Obstetrics & Gyn., 2010 WL Tail Coverage Tail = $146K Group refused to pay MD had to pay, then sued group MD lost case Lessons learned: Get it in writing Can not have a gap in coverage Patel v. Assoc. in Obstetrics & Gyn., 2010 WL Professional Risk Management Services Inc. (PRMS) 2

3 Five basic parts of a policy Declarations page Insuring agreement Conditions Exclusions Endorsements The Insurance Contract Coverage Consent to settle Defense costs inside or outside of policy limits Administrative defense Definitions Territory Loss of earnings Things To Look For Specific Coverages Vicarious liability Medical director Supervision of other providers Peer review Utilization review / QA activities Practicing outside of specialty Geographic areas Forensic activities Consent To Settlement Your input in the claims settlement process Unlimited consent Limited with arbitration Limited with hammer clause No consent Cost Where do unanticipated costs appear? Examples Administrative defense costs that must be fronted by insured Discounts end Claims-made policy matures ECT, other activities Cost of tail Read Your Policy! 2015 Professional Risk Management Services Inc. (PRMS) 3

4 Even standard contracts may be negotiable Involve attorney early Hope for the best but plan for the worst Have a written agreement Employee or independent contractor Have a clear understanding of your duties As assigned or practice of psychiatry too vague On-call responsibilities Does insurance cover? Can you engage in outside activities? Avoid indemnification/hold harmless clauses No insurance coverage call carrier Know the term of the agreement How does it renew? Every 3 years Automatic Can you renegotiate? Understand how contract may be terminated By you By your employer Without cause? How is breach defined? Plan for continuity of care after termination Who sends notice to patients? Who owns records? Is there a non-compete clause? Are there cure provisions? Who pays for tail? 2015 Professional Risk Management Services Inc. (PRMS) 4

5 Ask for clarification of vague language Have modifications, clarifications, etc. put in writing Make certain all referenced exhibits are attached to contract Don t begin work until written agreement is signed May be negotiable Fewer psychiatrists are participating Get changes in writing Provider manuals are incorporated by reference read them Termination Required notice MCO and patients Acceptance of new patients Managed Care Contracts Managed Care Contracts Indemnification agreements No insurance coverage call carrier Definition of breach Cure provisions Dispute resolutions Malpractice insurance Limits Making MCO a named insured Consult an attorney Click and Agree online agreements Non-negotiable Binding Free may not be free Vendor insolvency/termination Compatibility with new systems Indemnification provisions Gag clauses Key Concepts License Confidentiality, Privacy, and Security Warranties Limitation of Liability and Indemnification Dispute Resolution Payment Termination and Wind Down License Right to use vendor s software Term Perpetual? Automatic renewal? Other term? Fees One time payment Ongoing? Fixed? Users Unlimited or per user fee? Set now or as added? 2015 Professional Risk Management Services Inc. (PRMS) 5

6 Confidentiality, Privacy, Security Written to protect vendor s intellectual property Often written broadly May prevent Sharing access to compare systems Sharing info to address patient safety concerns Don t forget your own info other than PHI May not be protected under contract Warranties contractual promises Express or implied Often excludes implied warranties Promises not enforceable unless expressly stated Entire agreement Examples of desirable warranties: Compliance with performance specifications Restrictions on unauthorized access Disaster recovery provisions Guaranteed availability of support Response time Transition assistance upon termination Meaningful use Limitation of Liability and Indemnification Vendor limits own liability exposure May shift liability to you May result in inability to even make claim against vendor Dispute resolution May be limited to arbitration Subject to laws of distant state Payment Free may not be free $$ additional users, 24/7 access, storage Ad-free access Sell your de-identified data Yours and patient Termination and Wind Down What happens to your data? Can you get it back? Will it be in a usable format? Will they provide assistance to transition? Will there be additional fees? How is contract terminated? What happens if vendor goes broke? 2015 Professional Risk Management Services Inc. (PRMS) 6

7 Additional Sage Advice A contract may affect your professional andpersonal life for many years to come. Seek the counsel of an experiencedattorney well-versed in healthcare law. Even if you completely understand everything written in the contract, you may not be aware of provisions that shouldbe in the agreement but are not. Involve the attorney early not afteryou have already agreed to terms. High Exposure Areas in Psychiatry and Risk Management Psychiatry Claims Psychiatry is a low-risk specialty Low risk activities Forensic Child and adolescent practice Psychoanalysis Psychiatry Claims PRMS Experience 77% of claims close without indemnity payment or by dismissal or summary judgment 20% of claims settle 3% go to trial Greater than 99% defense verdicts Psychiatry Claims Basic Methods for Reducing Risk Most prevalent Suicide/attempted suicide (Low frequency, but high severity, suicide is the single most identifiable cause of loss for psychiatrists. ) Medication misadventure Communicate With others Consultation Hand-offs With the patient Informed consent Document Document for continuity of care Document thought process Most expensive Severe injuries that require life-long care Gather information About the patient Patient history and physical Ongoing assessment Past treatment records Follow-up on diagnostic tests Ongoing monitoring About the illness Practice guidelines 2015 Professional Risk Management Services Inc. (PRMS) 7

8 Questions? 2015 Professional Risk Management Services Inc. (PRMS) 8