Top 10 Tricks on Medical Liability

Joe Wilson, Jr., MD, is chairman of the board and CEO of MagMutual, a medical liability insurance company based in Atlanta, GA. He practiced interventional cardiology for 27 years before transitioning to a career in which he likes to think he is able to care for doctors when they “act like patients,” as they are often in foreign and uncomfortable situations that he can help guide them through. Wilson talked with TCTMD’s Fellows Forum about his Top 10 Tricks for fellows looking to understand the disorienting world of medical malpractice and negligence claims and how they can best protect themselves and their careers long-term.

1. Understand the duty put on you by society

“Most of us got into medical school by making A’s,” Wilson said, but “society doesn't expect us to be perfect every time.” Challenges related to time and patient volume often get in the way of perfect care, he said. “Any profession has a degree of responsibility to society when what they do can potentially harm people,” Wilson explained, adding that because of the nature of medicine, physicians will always be held accountable for negligence even if they do everything else perfectly. The idea of a “duty” imposed on physicians by society is “not talked about in training programs very much,” according to Wilson, “but once you get into the private world, it is the ultimate standard by which you practice.” Each state has a slightly different legal definition of what this means, but generally it is “what a similar physician with similar training would do under similar conditions,” he said. Lastly, Wilson said early career physicians often struggle with the sudden disappearance of accountability when they transition from fellowship to a full-time job. This can create challenges in decision making when suddenly the young physician has to make a final call solo, but it is important to check yourself and make sure what you choose adheres to good patient care.

2. Comprehend what insurance can do for you

Medical liability insurance provides protection in the event a physician’s standard of care is ever questioned, Wilson explained using the analogy that it is akin to a rock climber using a rope—“that allows you to climb with more freedom.” There are a myriad of different ways policies can cover a physician or institution, but the main goal behind the insurance provider will not only be to resolve financial situations, if necessary, but also help guide the accused through the process. “There’s going to be a team of people and money behind that team to support whatever needs to be done to resolve the situation and not distract you from continuing to do your good taking care of patients,” he said. “The company should take a lot of the weight off your shoulders and make sure that with your help your interests are being handled in this very foreign environment to physicians, which is the legal system.” Liability insurance will also protect physicians’ personal financial risk in the event of serious negligence.

3. Ask about insurance in detail when negotiating a contract

Amid everything else you are supposed to discuss when negotiating a contract with a potential employer, liability insurance should be made a priority, Wilson said. But many fellows don’t know the specific questions to ask and might regret that later. Don’t just ask if the institution will pay for it—it’s pretty standard that they will—but ask for the details related to how the protection would work if you should need it. Specifically, Wilson recommends asking about something called “consent to settle,” especially if you are seeking employment at a hospital. This would come into play if a physician was accused of negligence and didn’t think he/she did anything wrong but the hospital wanted to settle to avoid publicity. If a settlement was reached, the physician’s name would end up on the National Practitioner Data Bank, something that could haunt their long-term career prospects, Wilson explained. Frequently both the hospital and the physician are named on the policy, and in that case his company would assign separate attorneys to each party if their interests were not aligned. When negotiating a contract, it will be important to know if you will be offered that, should you need it, he said. You can “have a joint agreement to where the physician won't throw the hospital under the bus and the physician won't testify the hospital was negligent and the hospital won't testify the physician was negligent.”

4. Don’t forget about tail insurance

Something else to ask a prospective employer about is if they will pay for something called tail coverage in the event you decide to leave the institution down the line. “Most coverage is sold now on a claims-made basis,” Wilson explained, meaning that coverage occurs when the suit is filed and not when the alleged clinical incident happened. But “the statute of limitations is 2 years in most cases” so a physician could be sued for a patient he or she cared for at a prior institution up to 2 years later. “If your employer drops you from your insurance on the day you no longer become an employee, then there’s this exposure called a tail,” he said. Particularly if you plan to transition to a new job over a few weeks or months, tail coverage can be a financial burden for you to pay for on top of potential moving costs and other expenses without a paycheck. Wilson said he sees physicians parting with former employers under unfriendly terms and hospitals will often deny tail coverage “as a way to stick it to the doctor.” If you discuss this up front, this could be one less issue to deal with down the road. Don’t be disheartened if you ask for this and are told no, he said. Rather push back and say: “I know you don't typically do it, but it's important to me and I'm going to have a hard time working for someone who doesn’t respect the need for me to be protected against lawsuits.”

5. Look into using an independent agent

This is likely irrelevant for many fellows transitioning to their first job, but in the event you decide to go into private practice, it can be to your benefit to buy coverage through an independent agent rather than directly through a company, Wilson advised. If you have needs in insurance besides medical liability, like workers compensation for employees and coverage for directors and officers, facilities, and business interruption, “it’s probably better to get an agent and see if you can bundle all of these liabilities into one sort of package that would possibly give you a better rate and better coverage.” Of the about 20,000 physicians that his company insures, Wilson estimates that about half of them buy direct and the other half use agents. “It can be done either way, but the larger you are, the more likely you are to benefit from having an agent,” he said.

6. Learn what kind of claims you might face as a cardiologist

As claims get more expensive with procedural risk, Wilson explained that cardiologists are more likely to face higher claims than other physicians. To be prepared in the event you face a claim, you should understand where the vast majority of them come from, he said. The four general areas medical negligence claims fall into are improper performance, errors in diagnosis, errors in medication, and failure to recognize complications.

7. Always be transparent with your patients

In his experience, Wilson said “that most patients sue because they don’t feel like the physician and the staff were completely forthcoming with what exactly happened and they wonder if they are not hiding things.” Naturally, physicians are very talkative before a procedure or therapy is initiated because they want the patient to know about all the potential positives, he said. When a complication occurs, “what I see physicians doing wrong is withdrawing from the conversation. They feel bad about it. They don’t necessarily believe they were negligent but they do feel they contributed in some way because they were the one who did the procedure,” Wilson commented. The patient and family can immediately sense when a physician is no longer being as transparent with information and often “assumes there’s something going on they don't know about.” Wilson’s advice: “when there is an unexpected adverse event, that patient and the family need four times as much of your time as the person who gets a successful outcome. You need to pile onto the family over and over again, make sure all their questions are answered, be honest with them, and explain to them why you're very sorry this happened.” Many physicians are hesitant to say sorry, but doing so is not an acknowledgement of responsibility or guilt in the eyes of the law, Wilson said.

8. Know that you will likely face allegations at some point. . .

Many physicians “overestimate the likelihood of being sued,” Wilson said, estimating that the frequency of having a claim filed against interventional cardiologists today is about half of what it was in 2005. This could be due to the extinction of the “cowboy physician” who practiced without oversight, increases in patient safety, and patient understanding of physician workload, he suggested. Still, the odds are “pretty good” that most interventional cardiologists will be faced with a malpractice or negligence claim at some point during their careers, though probably not in their first year or two out of fellowship, Wilson said. “But you can’t practice every day as if today’s the day you’re going to get sued. You just have to practice the best medicine you can, do the right thing for your patients, fulfill your duty to the patients, and then let the chips fall where they may,” he observed.

9.  . . . But that most claims don’t go to trial

Annually, Wilson estimates his company handles about 1,800 claims—“most of which we don't pay any money on”—but only about 100 trials. Because of the same reasons he listed for why claims have gone down, Wilson said that jurors like to give the physician the benefit of the doubt. Because of this, “a lot of these cases are sort of grey areas as to whether they were negligent or not,” he continued. “The plaintiff's attorneys have chosen not to spend a lot of money pursuing these cases because when they go to trial, they end up only winning 10-20% of them around the country.” If negligence was proven, which happens less than 20% of the time, a settlement is more likely, he explained.

10. Remember why you entered medicine in the first place

In the event you do face a claim, it’s possible that the legal proceedings will take several years to resolve even if you did nothing wrong. “Meanwhile, you’re making 30 or 40 or 100 decisions every day, and you're taking care of hundreds of other patients who are all very satisfied,” Wilson said. “Don’t let this one patient who became disgruntled and blames you for a bad result interfere with the joy of taking care of the other 99.9% of the patients who very much appreciate the care you're giving them.” He said he has seen this process “take a lot of the joy out of medicine for physicians. That's a crime. That should not happen.” Even if you make a mistake and a patient or family is affected, “the insurance company, as much as money can, should step up and figure out a financial solution to the error that was made,” Wilson said. “Don’t let one decision on one patient cloud the benefit that you bring to all the other patients that you are able to take care of.”

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