ndependent medical examiners (IMEs) and peer review doctors all have one thing in common: they are in the business for money, as their level of expertise and professional training offer nothing to the "clients" they evaluate. The purpose of their job is to render a diagnosis and formulate an opinion on care for today, tomorrow and often care for 1 year ago. They do nothing to improve the quality of lives of the clients they see, nor make any recommendations other than comments on the treatment plans of the treating doctors. That is not a bad thing in itself as, in a perfect world, it is a vital service whose primary purpose is to protect stockholders, employers, municipalities, federal insurers and any other entity that is at risk when insuring the public. Without this vital component, a potential imbalance could occur with a small fraction of treating doctors who are unscrupulous.
While it is a given that IMEs and peer review doctors have entered this business purely for money, many have gotten a "free ride" by being given liberties in the eyes of the law. While an "independent and peer review examination" comes in many forms, from pre-employment to record review or at the request of an insurer or other third party payer, courts, both at the state and federal levels, have a dichotomy in opinion. Either the courts feel that the doctor is responsible for his/her actions in the doctor-patient encounter, no matter how limited, or they do not. The legal status is called "duty of care" and it is incumbent upon every IME and peer review doctor to understand the relationship of this "limited doctor-patient relationship" to his/her duty of care, or lack thereof, and the grave pitfalls he/she faces as a result of that relationship.
IME and peer review doctors: In order to understand what you have given up in order to earn money from your relationship with the insurance and IME/peer review companies, you have to understand the role, responsibilities and the real risk-takers in your relationships. You also have to fully understand what coverage your malpractice carrier has with you and who the real risk-taker is in that relationship. There are a lot of players in this game and you must understand that the insurance carriers are not stupid; they do not need your money, you need theirs, so you often do not read the "fine print" or understand the grave peril they have put you in.
Courts in many states such as Alaska, Missouri, and Colorado have ruled that IMEs and peer review doctors do not have doctor-patient relationships as a result of the "limited doctor-patient relationship" of insurance and employment examination and, therefore, have no legal "duty of care" towards the patients being examined. As a result, these states have ruled that no malpractice claims will be considered because there are no doctor-patient relationships. However, this does not limit victims of examination injuries, withholding of vital information, misreporting facts, underreporting facts, loss of vital care, wrongful deaths or any other negative sequellae of the IME examinations or peer review reports from taking legal action against an IME or peer review doctor for negligence, slander, defamation and a myriad of other reasons.
IME doctors often place the following in their reports: "The above captioned claimant is examined in accordance with the restrictive rules concerning an independent medical evaluation. Prior to the evaluation, it was explained to the examinee that this appointment was for the purpose of evaluation only and not for care, treatment or consultation, and therefore, no doctor-patient relationship would result." Although this is a correct and factual statement, it does not insulate the IMEs and peer review doctors from civil litigation beyond the malpractice umbrella.
Nationally, the courts are full of cases brought against IME and peer review doctors in civil actions for many of the issues listed above and the question is, "Who is the risk taker?" In other words, who is going to pay for the lawyers and possible settlements or verdicts in those cases, win or lose?
I have read and communicated with many chiropractic malpractice carriers in the United States. The question I asked them was, "In states where there is no duty of care and no malpractice claims as ruled by the courts, are you going to cover your insured?"
NCMIC responded with a resounding yes. They claim that they stand behind their insured and provide full coverage, no matter the incident. Upon reading the language in their policy, it states the following as of 2012:
1. Legal fees and damages incurred in the defense or investigation of a claim or suit that arises out of your chiropractic utilization review services, including the rendering of an opinion on the adequacy, necessity or reasonableness of care furnished by another chiropractor based on the review of the patient’s records without a physical examination. Supplementary payments for legal fees and damages under this section will be limited to $25,000 per occurrence and $50,000 aggregate for all actions arising during the policy period.
2. Legal fees and damages incurred in the defense or investigation of a claim or suit that arises out of your peer review services, including services as a member of a formal accreditation, standards review or other professional board or committee related only to chiropractic. Peer review means the evaluation of the professional services rendered by another chiropractor for the purpose of determining the qualifications and/or the competency of the chiropractor. Supplementary payments for legal fees and damages under this section will be limited to $25,000 per occurrence and $50,000 aggregate for all actions arising during the policy period.
OUM has similar parameters as NCMIC and states:
1. Legal fees and damages that arise out of the Named Insured's chiropractic utilization review services, including the rendering of an opinion on the adequacy, necessity or reasonableness of care furnished by another chiropractor based on the review of the patient's records without a physical examination. The supplementary benefit under this paragraph (2) for legal fees and damages is limited to $25,000 per claim and $50,000 aggregate;
2. Legal fees and damages that arise out of the Named Insured's peer review services, including services as a member of a formal accreditation, standards review or other professional board or committee related only to chiropractic. Peer review means the evaluation of the professional services rendered by another chiropractor for the purpose of determining the qualifications and/or the competency of the chiropractor. The supplementary benefit under this paragraph (3) for legal fees and damages is limited to $25,000 per claim and $50,000 aggregate.
Chiro Futures state within their policy:
We will pay for legal expenses incurred by us to investigate and defend a legal action brought against you arising out of your service on a peer review committee, utilization review committee, or similar committee associated with a Health Maintenance Organization (HMO) or Independent Practice Association (IPA).
Chiro Secure has no contractual provision regarding the defense or coverage of IMEs or peer reviews performed by the policy holder. They state:
Professional services means services which are within the scope of practice of a chiropractor in the state in which the chiropractor is licensed. Professional services include your services as an educator either in any state or country or as a member of a formal accreditation, standards review, or similar professional board or committee, including as a director or officer of such board or committee.
Nowhere does it say "peer review panel" or that you are covered as in independent peer reviewer. You are only protected if you are part of a committee within an organization, thereby leaving you exposed to no coverage for performing peer reviews based upon the language in the contract. This ambiguity in the agreement, as interpreted by legal experts, leaves this open to interpretation and resultant discretionary coverage. In addition, both Chiro Futures and Chiro Secure explained to me verbally that they cover both peer review doctors' and IMEs' defenses and had "discretionary coverage" as determined by their underwriters and make their decisions on a "case-by-case" basis. There is no contractual language to cover either and the old adage should be heeded, "If it isn't in writing, it doesn't exist." In addition, if they do cover you, Chiro Futures will only cover your defense of peer reviews with no provisions for IMEs and both have no contractual language of discretionary coverage.
CNA states in their policy
Professional services do not include an Insured’s participation in the third party approval or denial of chiropractic or other healthcare benefits. Therefore, CNA offers no protection for the IME and peer review doctor.
The National Chiropractic Council Insurer does not consider IME or peer review activities within their policy. Therefore, the definition of the practice of chiropractic falls under the prevue of the courts. Should the courts rule in your state that there is no "duty of care," the carrier has the legal standing to not cover their insured.
From the best coverage to the worst in the country regarding peer review and IME defense, the most coverage you will get is $50,000. However, understand what is being covered. The broadest language gives you $25,000 for legal defense and damages, while the most coverage gives you $50,000 aggregate for legal defense only. The worst language covers nothing. Should you be sued for any of the scenarios listed above as a peer review or IME doctor, your malpractice coverage is not going to cover you as it would with one of your treating patients because there is not a "duty of care" in that limited doctor-patient relationship. That relationship has already been decided by the courts and, therefore, the action brought against you will not be considered malpractice. Your malpractice carriers will possibly provide, depending upon your policy, legal defense up to $50,000 aggregate with $25,000 per claim or complete coverage up to $25,000.
What Is Your Real Risk?
If you ever had to defend yourself in a lawsuit, legal fees often and usually go well beyond both those limits depending upon the merits of the case and the resolve of the person suing you. Who is going to pay for the balance of the legal defense beyond the parameters of your policy? Should you be found guilty, who is going to pay the settlement or jury award that can reach into the millions with health care issues? The answer to both: you are...as your carrier has shifted the burden of coverage to you through the clear language of the contract.
Your malpractice company is not benevolent; they are a business answering to stockholders and CEOs seeking annual $20,000,000+ bonuses. You are not going to get indemnified from the insurance carriers or the IME companies that hire you as they, too, are seeking significant profits. It comes down to who is the risk taker and who is the profit-maker. You, the IME or peer review provider, are accepting very modest fees, while assuming million dollar risks and being left as the risk taker and self-insured.
Facts for those states with no duty of care:
- IME and peer review examinations have a limited doctor-patient relationship and no duty of care.
- As a result, the courts have ruled that this does not fall under malpractice. Malpractice carriers have no obligation to cover you for non-malpractice issues.
- Malpractice carriers will cover you for legal defense ranging from $0 - $25,000 per case.
- Malpractice carriers cover $0 for awards or settlements against you.
- Insurance companies and IME companies will cover $0.
- You have to pay any excess legal fees and all awards or settlements against you. Personally, that can be millions.
Is it worth it?
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