How to Minimize
Malpractice Exposure and Maximize Coverage When
Setting Up a Practice
Jill M. Mhyre,
M.D., Editor
Residents’ Review
While it is impossible to prevent malpractice liability
claims, you can limit their impact. Scott Kragie,
Esq., who serves as legal counsel to ASA, addressed
the ASA Resident Component Leadership Training Program
in Orlando, Florida, last October about ways to approach
professional liability when beginning a practice.
This article summarizes his advice.
When evaluating regions of the country, first research
the local legal climate. There is evidence of geographic
clumping of malpractice claims as well as areas with
notoriously high jury verdicts. Local culture, the
distribution of malpractice attorneys and state tort
law all impact claim patterns. Cities with high rates
include Philadelphia, Pennsylvania; Santa Cruz, California;
Houston, Texas; and Fargo, North Dakota. Malpractice
liability insurance companies produce statistical
abstracts of malpractice insurance for various areas,
and the rates reflect claims.
Second, it is important to select your practice group
wisely. When interviewing for a job, ask about the
claims experience of the group. Find out what claims
have been made and how they were settled. Be cautious
if a group offers extraordinary economics. This can
point to shortcuts in care, extensive use of physician
extenders or billing irregularities. Ultimately, find
a group whose practice pattern matches your degree
of comfort. Groups with more active continuing medical
education programs have a lower rate of malpractice
liability claims.
Learn about malpractice insurance so you will be in
a position to evaluate and compare different plans.
The ASA publication “Practice Management —
Starting Out: A Practice Management Guide for Anesthesiology
Residents” describes the different types of
coverage.1 The two major types include
occurrence and claims made. Tail
coverage, nose coverage, exclusions and asset protection
insurance are other important features beyond the
scope of this article.
When setting up a practice, establish a relationship
with a general practice lawyer who knows the local
community and state law. Incorporation can offer personal
liability limitations but also can have tax implications.
Find out if the state has limited or unlimited liability
(“tort reform”) and if there is a homestead
exemption. Depending on state law, other opportunities
to shelter basic assets may be found with an IRA,
401K, an international trust, property titled under
a spouse or with trusts for children. Most importantly,
in the event that a claim is filed, your attorney
will be prepared to work with the lawyers representing
the hospital and the malpractice insurance carrier
to ensure that your personal interests are not overlooked
in the course of a settlement or any litigation.
Finally, practice in a way that demonstrates professional
competence. First, learn the ASA’s clinical
practice guidelines and follow them. They provide
the presumptive, basic standard of care. Second, achieve
full board certification as soon as possible and maintain
current credentials. Third, remember to practice as
a perioperative physician with careful preoperative
and postoperative communication documented accurately
in the medical record. Particularly in dealing with
parents, it is critical to convey that their child
is as important as your own.
In the event of an adverse outcome, offer a candid,
honest and thoughtful discussion with the patient
and/or family as soon as possible. Avoidance conveys
arrogance and leads to anger, frustration and a lower
threshold to sue.
Professional liability can be personally devastating,
but it does not have to be. A careful practice pattern,
a clear and dependable liability policy and an asset
protection strategy that is implemented early in your
career, prior to the assertion of any claim, can go
a long way toward protecting both your practice and
your personal financial security.
Reference:
1. Semo JJ. Practice Management — Starting Out:
A Practice Management Guide for Anesthesiology Residents.
Park Ridge, IL: American Society of Anesthesiologists;
2001.
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Jill
M. Mhyre, M.D., is a CA-3 anesthesiology resident
at the University of Michigan, Ann Arbor, Michigan. |
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