Medical Malpractice Insurance: The Implications and Complications By Philip R. Dupont & Maggie L. Nigro

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1 Series: Malpractice From A-Z First of a Series of Five Medical Malpractice Insurance: The Implications and Complications By Philip R. Dupont & Maggie L. Nigro You ou should be aware that the new Missouri tort laws may help reduce your risk in medical malpractice case. Maggie L. Nigro, JD, is an associcate, and Philip R. Dupont, JD, is a member and associate at Husch & Eppenberger, LLC, in its Kansas City, Missouri, office. They practice Iaw in the fields of general business litigation, health law and product liability and toxic tort. Husch & Eppenberger, LLC, acts as outside general counsel to the MSMA. Introduction While much has been written about the malpractice insurance crisis which health care providers have experienced the last several years, this article deals with basic questions regarding insurance irrespective of its availability or cost. It is the first in a series of five articles which will deal with the general topic of malpractice lawsuits. This article explains some of the common malpractice insurance terms and types of coverage of which you need to be aware in your practice. This article is a broad overview incorporating the most recent Missouri statistics on the state of medical malpractice and medical liability. Each physician will inevitably have issues unique to his or her practice that must be addressed by an individual employer or group and insurance broker. This article will prepare you for the conversations you should be having about the type and amount of coverage your particular practice requires or carries. 1 How Much Coverage Do You Need? The Recent Missouri Statistics According to the Missouri Medical Malpractice Insurance Report released by the Missouri Department of Insurance (MDI) October 2005, the average award per claim increased sharply for the third consecutive year. The average award against all health care provider groups (which includes physician and surgeons, nurses, dentists, hospitals and clinics) has consistently increased over the last few years reaching $252,666 for The average award against the all heath care provider groups in 2001 was $166,623, in 2002 was $207,627, and in 2003 was $212,006. The average award per claim against just physicians and surgeons was even higher than the all health care provider average in 2004 coming in at $287,733. Keep in mind that these numbers represent merely the average of all claims, and there is no guarantee your particular case might not result in a higher damage award. You should also be aware that the new Missouri tort laws may help reduce your risk in medical malpractice case. The new tort law imposes at $350,000 cap on noneconomic damages damages that cannot be objectively quantified, such as pain and suffering. 2 There is still no limit or cap on the amount of economic damages or actual objective losses incurred such as medical bills, past and future lost wages, or future care and treatment. Medical care expenses and lost wages represent the primary economic components of malpractice awards. The plaintiffs bar focuses its damage theories on medical expenses and lost wages by engaging life care planners and economists because there is no limit on this category of damages. Medical expenses and lost wages have been increasing at a rate higher than the rate of inflation, so the risk can be significant. There is also a helpful venue provision in the new tort law that will make it more difficult for plaintiffs to sue in a patient- January/February 2006 Vol. 103 No. 1 Missouri Medicine 17

2 friendly county that has notoriously large plaintiff verdicts, like Jackson County in Kansas City or St. Louis City and County, when there is little connection between that jurisdiction and the care rendered. The new law establishes venue in the Missouri county where the injured patient/plaintiff was first injured by the alleged negligence. 3 This venue change could be significant because of 1,244 malpractice claims filed statewide in 2004, 734 or some 59% were filed in the three plaintiff-friendly courts in Jackson County, St. Louis County and St. Louis City according to the MDI. This revised venue provision will add predictability to where you can expect to defend you medical malpractice lawsuit, and may help reduce the risk of a large verdict from a plaintiff-friendly jury pool. As medical malpractice lawsuits become more complex and therefore more expensive to litigate, the plaintiffs bar is focusing on the claims with the most severe injuries. The MDI codes injuries associated with medical malpractice claims on a 9- point scale, with 1 representing minimal physical harm and 9 representing death. In 2004, the average injury for claims against physicians and surgeons reached a record high of 6.5. Category 6 is defined as significant permanent injury such as loss of limb or organ. The MDI also evaluated the error and omissions used by the National Practitioner Data Bank. Figure 1.1 shows the percentages attributed to various medical specialties or root causes based on paid claims. So how much malpractice insurance should you carry? The answer is it will depend. Missouri law actually requires any physician or surgeon on the medical staff of a hospital in a county with a population of more than 75,000 to show evidence of medical malpractice insurance coverage of at least $500, This section does not apply to physicians who limit their practice exclusively to treating patients at the hospital and are insured exclusively under the hospital s policy of insurance or the hospital s self insurance program. This statute does not limit or restrict a hospital s authority to issue rules or regulations requiring its physician or other health care professionals to carry minimum levels of malpractice insurance as a condition of membership to the hospital s staff. Regardless of the statistics given above, other factors unique to your practice will affect the amount of coverage you require. Your broker will have the most detailed insurance industry information on the risk statistically associated with your specialty and will factor in other information such as your location, your years of professional experience, your education and training, and your prior claim history. So, ultimately, there is no one size fits all amount of insurance to carry. Figure 1.1 The percentages attributed to various medical specialties or root causes based on paid claims. Surgery 26.5% Diagnosis 24.4% Treatment 23% Medication 8.9% Monitoring 7.3% Obstetrics 4.5% Misc. 2.6% Anesthesia 1.6% IV/Blood Products 0.6% Equipment 0.4% What Type of Coverage Do You Need? What Licensed Carriers Are In Missouri? What Are Risk Retention Groups? One of the most important questions to consider is the type of coverage you will need for your individual practice. In reality, you may not be given the opportunity for any input into this decision. If you are the employee of a large hospital, that decision may be made by its administration with or without your thoughts. However, even if you are not involved in the process of obtaining your coverage or renewing your coverage, you should still know the parameters of the coverage being made available to you. For instance, your employer or group may provide you insurance for your day-to-day activities, but that coverage may exclude any moonlighting or charity work you may be doing. 5 Never assume that the coverage you have will protect you for all the medical services you are rendering if you are practicing outside of your specific employee duties. Also, it is important to understand exactly what acts are covered by your employer s or group s insurance. Your insurance coverage may provide strictly medical malpractice insurance coverage, and neglect all other types of coverage, such as general business liability, officer and director coverage or workers compensation. Missouri law is clear that a professional s conduct is not wholly covered under a professional lability policy just because he or she is a professional. 6 If you act in many capacities in your group, you need to know whether you are covered so you can make the decision to safeguard yourself with additional coverage for all such activities. Licensed Carriers v.. Risk Retention Groups Licensed carriers are the traditional insurance companies that have been writing professional liability policies for years. The number of licensed carriers actively writing policies in Missouri is lower at the present than it has been in the past. According to the MDI, the following four licensed carriers wrote half of the entire market share for all health care providers in the State of Missouri in 2004: Missouri Physicians Mutual, The Medical Assurance Company, Inc., Missouri Hospital Plan, and Medical Protective Company. When the market share is limited to just licensed insurers of physicians and surgeons, Missouri Physicians Mutual carried more than a quarter of the market share (26.44%) and The Medical Assurance Company, Inc., carried slightly less (23.59%), with Medical Protective Company rounding out the top three (11.71%). Be sure to check the insurance industry rating for the carriers being 18 Missouri Medicine January/February 2006 Vol. 103 No. 1

3 proposed by your broker or through A.M. Best or Standard & Poor s. Risk retention groups are a more recent entry onto the professional liability scene. The Liability Risk Retention Act (LRRA) is a federal law passed by Congress in 1986 to help businesses, professionals, and municipalities obtain liability insurance, which had become either unaffordable or unavailable due to the liability crisis. Risk retention groups are owned by the members who specially pool and share similar business risks. The members of a risk retention group must be engaged in the same or similar businesses, at least so far as the liability exposures are concerned. A key benefit to the use of a risk retention group is that because each policyholder is also a member who participates in profits, each policyholder has substantial incentive to engage in proactive risk management to try to avoid claims. In addition, there are also insurance companies formed under Chapter 383, RSMo. These are self-assessment companies. Currently, there are several licensed carriers in the State formed under Chapter 383. Each operates on the principle of shared risk with the ability of the company to assess each insured if the reserves are not sufficient to cover incurred losses. Some Chapter 383 companies carry re-insurance to limit the overall risk of the company. Since each differs in terms of how they operate, as with any carrier, it is best to check with the Missouri Department of Insurance if you have questions about the company. What Type of Coverage Does Your Policy Provide? Claims-Made v.. Occurrence Medical malpractice claims are unique in that there may be a long time between the date of the occurrence and the date that the claim is made or the error is discovered. In response to this phenomenon, the insurance industry adopted claims-made coverage for professional liability situations. Claims-made insurance is a form of insurance by which coverage is limited to liability only for those claims that arise from incidents or events that both happen and are reported to the insurance carrier while the policy is in force. Unlike most insurance, claims-made coverage is triggered at the time the claim is made and reported to the carrier. It is not triggered at the time of the alleged occurrence. For example, assume you were insured by Company A for the period of January 1, 2005, to December 31, 2005, with a claims-made policy. A lawsuit is filed November 1, 2005, alleging you committed malpractice on March 1, You are covered for the claim because both the incident and the reporting happened within your coverage period. However, if the same lawsuit for the alleged March 1, 2005, malpractice is not filed until January 10, 2006, you are not covered because the claim was not reported within the coverage period. 7 The majority of insurance offered to physicians through their employers is for claims-made coverage. When you are aware of a possible error or bad outcome that you fear may turn into litigation but has not yet risen to the level of a claim, you will want to determine if your claims-made policy has a discovery clause provision. A discovery clause allows you to report a potential claim to trigger coverage even before a formal claim is made. There may be other policy requirements that tie into your discovery clause, so it is best to consult your policy before invoking the clause. Occurrence insurance is a form of insurance by which the insured is covered for any incident that occurs (or did occur) while the policy is (or was) in effect, regardless of when the incident is reported or when it becomes a claim. As an example, again assume you were insured by Company A for the period of January 1, 2005, to December 31, 2005, but this time have occurrence insurance. If a complaint alleging you committed malpractice on March 1, 2005, is filed on January 10, 2006, you are covered for the claim by Company A even if you left Company A at the end of that term and obtained coverage through Company B. Occurrence insurance is rarely offered because of the difficulty insurance companies have in projecting long-term claims costs. Be sure to know which type of coverage you are carrying. If you are given claimsmade coverage, you must be aware that additional coverage called tail coverage (discussed below) will be necessary if you ever leave the practice and obtain a new insurance carrier in a new practice setting. Understanding your prior coverage when making a change is essential to prevent any lapse of coverage. What Is Tail ail Insurance And Do You ou Need It? Tail coverage (also known as extended reporting coverage) extends the time in which you can report a claim under a claims-made policy. If purchased, it will cover claims reported after the expiration of the original policy and before the expiration of the extended tail coverage. Tail coverage protects the insured against all claims arising from professional services performed while a claims-made policy was in effect but were not reported until after the termination of the claims made policy. Tail coverage generally arises in a situation in which your insurer has left the market or you have changed insurers. Tail coverage provides seamless coverage, although the one-time price can be several times greater than a typical annual claims-made premium because of the greater risk being undertaken by the insurer. There is no set rule on who should pay for the tail coverage. It may be a benefit your new practice offers as an inducement for you to join. It may be provided by your old practice to insure adequate protection of its assets should you be sued after leaving. Be sure to discuss tail coverage any time you are considering leaving or joining a new group. When To Consider Going Bare Going bare refers to the practice of electing not to carry any form of professional liability insurance. (This assumes that you are not obligated to carry the minimum January/February 2006 Vol. 103 No. 1 Missouri Medicine 19

4 $500,000 required by statute as explained above or by the regulations of your medical group or employer requiring coverage as a condition of employment.) If a physician goes bare, he/she is putting his/her personal assets at risk in the event that a claim is made. If a claim is made, the bare physician not only risks losing his/her assets to the injured patient, but he/she will have to pay any attorney s fees necessitated by a lawsuit out of his/her own pocket, keeping in mind that a medical malpractice lawsuit moves at a snail s pace and, in most cases, will take between 1.5 to 2.5 years to get to trial. In extreme cases, you run the risk of personal bankruptcy. Going bare differs from self insuring in which the self-insured sets aside reserves in the event of an incident and may or may not have coverage that kicks in if a claim exceeds the level of self insurance or retained liability. Missouri law does provide several means for protecting personal assets. Real or personal property, such as a primary residence, that is jointly titled, meaning titled in the name of the physician and his or her spouse, is protected when a judgment is obtained against only one of the debtors. As an example, assume a physician titles his home jointly in his name and his wife s name. If a judgment for a malpractice claim is obtained against the physician, his house will be protected from the judgment since his wife was not also a party to the judgment. The physician can also transfer any property to his spouse and have it titled in the spouse s name only. It is best to have the property jointly titled or titled in the spouse s name before a lawsuit is initiated, so as to avoid any question about a fraudulent transfer. Furthermore, you can transfer assets to children or grandchildren (or anyone for that matter) to the extent of $11,000 per year per transferee without gift tax concerns. Missouri law also provides for the creation of a Missouri Asset Protection Trust. An Asset Protection Trust is an irrevocable trust in which the physician places any assets he or she wants protected. Note, however, that once an asset is put into the trust it cannot be taken out. The Missouri statute allows for the physician to have varying degrees of control over the asset as one of the trustees. The more conservative the trust (that is, the less control the physician has as a trustee and the fewer rights he or she has as a beneficiary), the more protection the assets will have, while a more liberal trust that gives the physician more control and beneficiary rights may afford less protection. Depending on the assets in a portfolio and the amount of control you want to retain over the asset, these trusts can become complicated. It is best to consult an attorney to determine whether one might be a good fit for your situation. Do You ou Have The Right To Choose Settlement or Trial? Read your policy. The insurer generally has a duty to defend lawsuits filed against you as its insured. This means that the insurance carrier will provide you with legal counsel of its choosing. Many policies require your consent to settle a case. This has become important because of the mandatory reporting requirements of any settlements or judgments to the National Practitioner Data Bank and the State Board of Registration for the Healing Arts. Your National Practitioner Data Bank information may come up when you apply for staff privileges or employment. Also be aware of the financial risks if you choose to block settlement and lose at trial. Your insurance coverage is the maximum amount that your carrier will pay in the event that you lose at trial. If the jury s verdict is in excess of your policy limits, you will be personally responsible to pay the excess amount. If you cannot pay the excess, you are subject to garnishment and collection actions which could impair your personal and professional credit as well as your practice. Questions may arise about the situation when the insurer makes an offer before trial to settle a case for a dollar amount within the policy limits, but the physician blocks that offer and then loses case for an amount that is still less than his policy limits, but greater than the offer made by the insurer to settle the case. For example, the physician has a professional liability policy with coverage in the amount of $100,000 with Company A. Before trial, Company A and plaintiff agree to settle the case for $50,000, but the physician blocks the settlement. At trial, the jury returns a $75,000 verdict for plaintiff. Is the physician responsible for the extra $25,000 of the judgment over the settlement offer? The answer to this dilemma will depend on the language of the specific policy. 7 If the policy allows for the insurer to recover the excess verdict under these circumstances, the physician will be liable. If you are not sure whether your policy exposes you to this kind of personal liability, ask your broker. As an extra precaution, you can retain personal counsel 8 who can review your policy and send the insurer a letter confirming that your interpretation of the policy does not make you liable for any verdict that exceeds the settlement offer, but still falls within the policy limits. Refer eferences ences 1. This article is written by Maggie Nigro, an associate of Husch & Eppenberger, LLC, in its Kansas City office with consultation by Phil Dupont, a member of the firm in that office. The information contained in this article should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and readers are urged to consult their own attorney concerning their own situation and any specific legal questions. 2. R.S.Mo R.S.Mo R.S.Mo Note that the new Tort Reform Law limits a physician s liability if she is providing treatment to patients in a city, county or nonprofit health clinic that provides free health care services, unless the injuries were caused by gross negligence or willful or wanton acts or omissions of the physician. R.S.Mo Newland v. Azan, 957 S.W.2d 377 (Mo. App. W.D. 1997). 7. Most policies that provide the physician with the right to consent to the settlement do not allow the physician to refuse to consent as to the specific amount of the settlement only as to whether to settle or not. 8. The attorney retained by the insurer to defend you in the lawsuit is prohibited from addressing insurance coverage issues with you due to conflict of interest principles. MM 20 Missouri Medicine January/February 2006 Vol. 103 No. 1

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