BETWEEN THE ROCK AND THE HARD PLACE
Storm Clouds on the Horizon
In the last newsletter, I discussed the reasoning behind anticipating the beginning of a new Medical Malpractice Crisis.
This assumption was predicated upon a review of the Diederich Data which documented that Total National Payouts for Medical Malpractice Settlements had declined every year since 2003 until 2012. Since 2012 Total National Medical Malpractice Payouts have increased for 3 (three) consecutive years.
Total payouts have increased >10% over the last three years despite the fact that insurance premiums have remained flat or decreased.
In the last newsletter I listed the following reasons for why the Malpractice Marketplace may be changing and why payouts have increased every year since 2012:
- Amnesia– on the part of both juries and physicians.
- During a crisis, the public is faced with a loss of physician access. Pregnant women cannot find an OB doctor, and there are wait lists to see high risk specialists. This hits the news which equates to juries understanding the consequence of high verdicts. Lack of access affects patients and jurors directly.
- During a crisis, physicians put Malpractice on their top list of issues. They talk to their patients and legislators. Awareness increases.
- Assumption of Complexity- During a crisis, physicians realize that they could lose access to affordable malpractice insurance. This has the potential of making us more conservative with regard to high risk procedures and high risk patients.
- Physician Extenders– a vital part of providing cost effective healthcare. Their numbers have increased exponentially. In PA, they are not covered by Mcare and must carry a full 1M policy.
- The Search for Zero- we live in a world that believes that perfection is the norm and any deviation or complication is someone else’s fault.
How do We Prepare for the Next Crisis and what are the Solutions?
- First be aware that the Market may be changing. Remember that during the last crisis almost every major malpractice carrier fled both PA and surrounding states leaving physicians scrambling for coverage. Remember that Positive Physicians Insurance Exchange was the life raft that insured hundreds of physicians allowing them to stay in their home state. Since 2002, Positive has had 95% retention and continues to provide the best risk management and personal service in the industry.
- Don’t jump on the latest bandwagon. As your insurer, it is not our goal or responsibility to mandate the type of procedures that you do. But if you are interested in lowering your premium and risk profile we recommend waiting until new procedures pass the test of time. We all remember ceramic hips that blew apart, treatments that resulted in mass tort cases and technologies that did not pan out.
- Oversee your physician extenders. Review your contracts and reporting processes. Though your practice may run perfectly, these contracts and reporting processes will be used against you in a claim.
- The power or words. Remember that everything that you write down, or enter in an EMR can and will be used against you during a claim. Think about what you say! Think about how the same innocuous word can be misinterpreted by a trial lawyer. Think about “What Ifs”. Consider documenting in your office record that you told your patients to call if they have any concerns between visits. Think twice about what you say about other physicians. Comments can and often will be taken out of context resulting in one of your peers getting sued.
- Remember that as a physician you are between the Rock and the Hard Place. As physicians it is our goal and obligation to deliver the best healthcare possible. At the same time we are inundated with requests to keep costs down. A recent study documented that physicians who practice defensive medicine get sued less often. It is hard to believe that someone paid for a study that proved the obvious.