Jeff Segal, MD, JD, FACS
When times are challenging, you must spend your money wisely. A Physical Medicine and Rehabilitation doctor recently posed this question on a physician social networking site.
Had professional liability coverage with his carrier for 21 months. Now moving to another state to work for the federal government. Worked at a chiropractor’s office – saw about 25 patients. Then opened a solo practice – saw about 120 patients: mostly worker’s comp or personal injury cases.
The carrier wants $12k for tail coverage. “I can’t think of any patient that would have a reason to sue me, but you never know…. Am I taking too much of a risk?”
The answer: It depends. The risk of being sued in the USA is never zero. A number of patients he saw had worker’s comp or personal injury claims. These patients were either within or close to the medical legal system. If these patients’ claims or remedies are denied, and they can concoct a viable legal theory, the good doctor might be next in line.
It’s a myth to believe that a doctor can prognosticate which patients he saw are likely or unlikely to sue. The reason: A patient may leave a practice for any number of reasons, and you will not know why he left. So, the conclusion of being immune from litigation is based on incomplete data. If the doctor cared for a patient with lower back pain, and that patient migrates to another physician, who then makes the proper diagnosis of cancer…You get the picture. $12k is a chunk of change for a new practitioner. But, it pales in comparison to the tail that many specialists have to pay. At twice the typical annual premium, some tails for neurosurgeons and orthopaedic surgeons can be in the hundreds of thousands of dollars. Ouch.
The options: See if the new carrier will bundle in “nose coverage.” Nose coverage addresses medical events that took place before you are covered by the new carrier. Nose coverage to the new carrier is analogous to tail coverage to the old carrier. The cost may be quite competitive; and if the new carrier wants your business, and believes the risk is reasonably low, the carrier might even waive any charges.
That said, if you do believe the risk is low (and we mean really low) and you have no problems sleeping, you should still take other steps.
If you plan on going bare, protect your assets to the fullest extent allowable by law. The time to do this is yesterday. Once a case is filed, your options for protecting assets contract rapidly. One cannot transfer assets to hinder, delay, or defraud a creditor. A plaintiff without a verdict is not technically a creditor – yet. But, a plaintiff with a verdict will argue that this activity, done after a suit was filed, could have no other purpose other than to hinder, delay, or defraud. Asset protection should be done by reputable, experienced professionals.
Consider a prepaid legal defense plan. If you are bare, and you are sued, you still need to defend your case. If you fail to respond, you could be hit with a default judgment against you. There are several reasonably priced, all-costs paid programs to address this issue. If you are bare, and you have the bad luck to be sued, they will address or pay your legal defense, including costs of experts. But note, these programs will not pay for a settlement or judgment.
Finally, to minimize the likelihood of being sued for a frivolous reason…Medical Justice, of course.
I say, buy the tail coverage. It’s not cheap, but as Dr. Segal said, it pales in comparison to many other specialties. It also has the advantage of covering both defense, experts and monetary judgments against you. If you are sued you will not think twice about what the insurance cost you…only the protection(s) it provides.
Workers’ Comp patients are notoriously flaky. Many are in it to support themselves without having to work for a living. I’m sure as a PM and R physician, you’ve seen many of these patients yourself. They are extraoridinarily “creative” in their efforts to “work the system.”
Combine that with an effective plaintiff’s attorney and you will find yourself served. It’s better to do without travel, restaurant meals and a nice car in order to pay for the insurance.
Hello Dr. Segal. One thing omitted in this discussion is that there are alternative insurers who will sell “tails” for far less than the standard market. They may restrict coverage by limiting the duration to 2,3, or 4 years, but their options are far more affordable than standard insurers.
Christopher Prestera, jd,CPCU
CEO
Physicians Advocate, LLC
954-491-8052
Florida is estimated to have over 7,000 bare doctors. Can you blame them? The high cost of malpractice insurance and feeling like a “ target” has motivated more and more doctors to “Go Bare”. The Law Firm of Lubell & Rosen offers an unlimited, pre-paid legal defense plan for those doctors who have exercised their right to “Go Bare”.
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