Every practitioner dreads that one incident in which a disgruntled or otherwise dissatisfied patient brings up that unwanted word, "malpractice." Fortunately, for most of us, it is a rare occurrence, thanks to the exceptional qualities and expertise of the doctor of chiropractic, but it does happen.
Professional liability insurance is a must in this day and age. If you do not have it, you are massively at risk, and you have nothing to stand between you, your practice, your family's assets and your future, should you be confronted by a serious malpractice incident. It now goes well beyond the classic malpractice equation where a patient claims injury. Today, perhaps in response to pressure from third-party payment agencies, or some misplaced desire to re-define the norms of chiropractic practice, some boards have acted against practitioners for "over utilization." In a high-profile case in a Western state, a DC was charged in 2007 with excessive utilization for seeing a family that had been involved in a rear-end auto collision at 65 miles per hour, for 14 visits. Arbitrary x-ray policies are also being utilized against DCs who take routine x-rays, even when those films are taken in accordance with established protocols such as the PCCPR Guidelines recently published by the International Chiropractors Association (ICA) and accepted by the National Guidelines Clearing House of the Public Health Service. In a case ongoing in Connecticut now, a DC has been charged with inappropriate actions by taking x-rays after an auto accident because those films did not reveal any damage or pathology, begging the entire question of the diagnostic nature of such films.
These types of board actions clearly push the envelope into new territory and have many believing that such boards have grossly exceeded their authority. Still, unchecked by the courts or the state legislatures, such boards can lay de facto claim to new authority, and this means that you will need to be on your guard even more than in the past.
I am not being the least bit alarmist or over-sensationalizing the new risks and exposures doctors are facing these days. The Health Insurance Portability and Accountability Act (HIPAA) is real. Insurance audits and billing errors and omissions issues are a fact of modern day practice. Real cases highlight the list of strange and completely unforeseen situations in which DC’s are finding themselves. In one state, a doctor was cited for misleading the public on the basis of the content of articles published in recognized journals posted or linked on his practice website. In another case, a DC was cited for overutilization for seeing a patient 12 times following a high-speed rear-end auto collision. Still another doctor was cited for failure to repay an insurance company for the care of a small child, because no "series" of X-rays was taken, in spite of the fact that every safety and utilization guideline states that X-rays of children are to be avoided except in very specific situations, of which this was not one.
The source of this new wave of complaints is also of curious interest because almost none of these complaints dealing with practice norms comes from consumers. Boards are taking the initiative themselves, responding to third-party payers and, sadly, other chiropractors, as the basis for their aggressive actions. The shaky ground that they are moving onto, however, has also prompted a number of lawsuits by the DC’s who are on the receiving end of such complaints, and those DC’s almost always win in the courts. The financial cost and distraction of such a suit is a very high price to pay, especially when, in the eyes of most chiropractors and chiropractic organizations, the behavior cited as inappropriate is seen as well within the established norms of care.
The legal industry is working hard not only to represent any and all clients with ruthless efficiency, but, through the Internet, a new means of aggressively soliciting as well as coaching potential malpractice clients has emerged. Patients can sit at their home or work computers and search the World Wide Web for point by point templates on how malpractice complaints can be most effectively filed, and how a patient can develop the strongest possible case.
The national debate on "tort reform" legislation is also driving more aggressive marketing and public outreach by the legal industry in which the horror stories of countless malpractice victims are used to help defend the legal industry against legislation that might limit their activities and the massive settlement trends.
The key for any doctor of chiropractic is to have a professional liability partner who understands that the health care system, especially in malpractice terms, is a rapidly evolving and increasingly difficult and complicated environment in which to operate.
The doctor of chiropractic without malpractice coverage, and there are thousands in the US, faces not only the exposure of defending any and all claims and possible damage awards; they will be obliged to front ALL defense costs, whether they win or lose. All DC’s should shop for the best coverage out of a sense of obligation to their practice and their patients and never forget the potential financial exposure that no or inadequate coverage brings with it. This is wise management, since both security and peace of mind are at stake.
What constitutes the best coverage?
PROVEN: First and above all, a proven, stable carrier is always your best choice. How long have they been covering chiropractors? You want experience and a track record that shows that they will be there in the years to come when YOU might need them. Secondly, the strength and quality of a carrier’s coverage can be measured by the ratings the insurance industry applies to such coverage. You will want an underwriter that is rated A or, better yet, A+ by AM Best, the agency most widely recognized for rating insurance programs.
COMPREHENSIVE: Comprehensive should mean both broad coverage and deep protection. Coverage should be available from each carrier as an Occurrence or a Claims-Made policy, and your prospective carrier should be ready to describe the exact details and advantages and, more importantly, any disadvantages for each model, depending upon your unique individual needs. Broad coverage and deep protection should include, but is not limited to the following elements:
• Legal and Audit Expense Coverage: This feature should offer at least $25,000 and, better yet, $50,000 in defense and audit coverage. This should not be limited to just Medicare and Medicaid. It should include all possible audit issues.
• Defense coverage for board investigations and hearings.
• HIPAA coverage.
• For Claims Made Types of Policies–tail coverage after five years, if you retire and are at least 50 years old, or after 10 years for any reason.
• Sexual Misconduct defense coverage.
• Consent to Settle. Claims should not be settled without your consent.
• Costs to defend should be unlimited and not reduce available limits of liability for settlement.
• Coverage for your corporation or partnership entity should be included on a shared limit basis at no additional cost.
You will also want to obtain $5,000 or more in coverage per person for payment for medical expenses for services rendered by others for injury to a person not resulting from your professional services.
Coverage for associate doctors is also a potentially problematic issue in a number of ways. The turnover in associates that many practices report may create a malpractice exposure that most doctors assume is covered by the associate's policy. When an associate leaves, it is vital that coverage for any act or acts that the departing associate may be held liable for is covered, and that the assumed coverage does not leave the corporation vulnerable. Remember, the turnover in associates is another vitally important reason to only purchase "occurrence" coverage, thus making sure that the policy covers any acts that took place while the associate was employed, and that coverage does not terminate on their departure or expose the practice as the result of future acts on their part.
Most, if not all, practices employing associate doctors require malpractice coverage as a standard part of the employment agreement. What is not always addressed is the residual coverage of both the employing doctor and that DC's corporation. This can be handled in a number of ways, but it does need to be handled. Make sure your carrier understands and expressly provides for this vital coverage.
KNOW YOUR RESPONSIBILITIES: Every policy requires the insured to know what their responsibilities are in case of claim. This is important to review so you do not unknowingly void your coverage by simply not knowing. Many policies have a time window to make a claim once you know that a claim is being made against you. Know your policy and always call your carrier immediately upon notice of any claim including Board complaints and insurance audits.
RESPONSIVE: Your ideal malpractice carrier is on call, on watch and proactive on every critical level and, above all, you need to know whom you should call, and where and when they can be reached. You should always expect rapid, direct answers. Also vital is that your carrier be fully informed and prepared to deal with any and all chiropractic-specific issues. If you cannot get in touch with your carrier’s representative at a moment’s notice, especially when some sound advice might defuse an otherwise dangerous situation, they might as well not be there at all.
As we start a new year and a new decade, it makes good sense to look at your malpractice coverage, assuming nothing and taking nothing for granted. Ask the detailed questions, get answers and explanations and, above all, shop around. It is in your best interest to know also that price is only half of what you should be concerned about because, like everything else in the marketplace, you get what you pay for and pay for what you get. It would be a shame to have to find out that you did not get something you thought you had and desperately need, after it is too late.
Stuart Hoffman, D.C., F.I.C.A., is the president of ChiroSecure. ChiroSecure offers many policy options to choose from. For more information, call Dr. Hoffman directly at 1-866-802-4476 or visit www.chirosecure.com.