Eric E. Shore, DO, JD, MBA

Clearly, if your state requires you to carry medical malpractice insurance to maintain your license, the answer is No. Even if you live in a state where licensure isn't linked to insurance, I don't recommend dropping malpractice insurance any more than I would recommend that you drop your health insurance. The insurance is there so that you don't have to pay out of pocket for legal expenses and judgments against you. Yes, there are ways of making yourself virtually judgment-proof, but do you really want to put all of your assets in someone else's name? What will happen if you turn those assets over to your spouse and then the two of you become estranged? 

Another reason to hold onto medical liability insurance: If you go bare you'll be dropped by most health insurance panels and you'll probably lose your hospital privileges as well. That's because many jurisdictions use the "joint and several" doctrine of liability, which means that if several parties are sued and found culpable, the others must make good on the judgment if some parties are unable to pay. For example, if you and your hospital are sued, and you have neither insurance nor assets, the hospital must fork over the entire amount of any award. So it's simply not in the hospital's best interests to continue its association with you. 

If a contract is signed under duress, a court may find it invalid. So ask yourself, will the patients you invite to sign a pledge not to sue you have a real choice? If you're in a small town or an inner city neighborhood where doctors are scarce, this might be considered a "contract of adhesion" that would be voided by a court. 

Even if there are many physicians in your area to whom your patient can turn, is she reluctant to change physicians because she has a complex medical problem, or she's been with you for many years? If the answer to either of those questions is Yes, in the patient's mind there's no real choice and, where there's no choice, there's no "meeting of the minds," the 

 of contract law. So, again, a court is likely to void the contract. 

Finally, your patient can sue you for medical malpractice 

even if he's signed a contract agreeing not to

. You may raise the contract as a defense, and you could win. But patients who have sustained significant injuries are likely to pursue appeals, and the litigation process could eat up considerable amounts of your time and money-and, of course, none of these expenditures will be covered by insurance.  

So don't drop your malpractice coverage. But if you really feel you must, and you're allowed to by state law, consult an attorney and make yourself as judgment-proof as possible.  			

The author is an internist and a health law attorney in Bala Cynwyd, PA. He can be reached by e-mail at 

. This department answers common professional liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, 

, 123 Tice Blvd., Suite 300, Woodcliff Lake, NJ 07677-7664. You may also fax your question to 201-690-5420, or e-mail it to 

Articles

Going bare? Bad idea

A woman in her 60s suffers a small hemorrhagic CVA. She undergoes successful physical therapy, and after more than six months, her blood pressure is finally controlled with a three-drug regimen, including one drug at doses higher than the recommended dose. Eighteen months later, however, when she attempts to renew her medication, she's told that her insurance company will no longer cover the drug that is being used beyond recommended levels. She calls you, frantic about being without medication, and says she was told that you had to prescribe something else or lower the dose. 

Insurance companies, by law and contract, can make coverage decisions: that is, they can decide what they will and won't pay for. If there's more than one treatment for a condition, they can choose to cover only the least expensive, as long as it's neither contraindicated nor proven to be ineffective. They can't dictate which treatment you should use. That's a 

 decision, for which it may be held liable. Here's a way to distinguish between the two types of decisions: In the example above, the insurance company approved the medication regimen, but not the dosage. This means the company was using 

 clinical judgment to demand a lower dose, not deciding which medication it would cover. As such, the insurer made a therapeutic decision. 

Attorneys learned long ago that the best way to stay out of a malpractice action is to "paper" both the client and the opposition. After you've talked to your patient, document the situation in the chart 

 send a letter to the patient specifying your medical advice and what you're doing to persuade the insurer to re-evaluate its coverage decision. 

Next, send a letter to the insurance company (preferably by certified mail) indicating your concerns, and detailing the possible consequences of its action. Tell the insurer that, in your opinion, the company is making a therapeutic decision, not a coverage decision, and explain why. Finally, send a courtesy copy of each letter or fax you send or receive to your patient. If you see significant potential for harm, get an opinion on the insurance company's decision from a healthcare attorney. The cost should be minimal, but sending a copy of the attorney's opinion to the insurance company may convince the company to reconsider. 

The example above was a real situation and when, after three weeks of denials, the insurance company received a letter from an attorney placing the company on notice about its liability for its decision, the patient's medication was approved within one day.  

 This department answers common professional liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult,

Insurer's decision, your responsibility

I began my response with the story of an elderly man who was sitting by the side of a swimming pool at a European resort. An American walked up to the man and asked if the water was warm. The man raised his head and answered, "

." "Great," exclaimed the American, who threw off his robe and dove into the deep end of the pool. A moment later, he emerged with lips quivering. "I thought you said the water was lukewarm," he sputtered. The elderly man raised his head once more and answered, "

Observation can be misleading, and the failure to send tissue for pathologic examination, regardless of how benign it "looks" is an invitation to legal-and, more important, medical-disaster. As we are all aware, there are benign-appearing lesions that turn out to be malignant. There needs to be only a small area of malignancy to make a seemingly benign lesion into a time bomb. And while some of these will be missed simply because the sample didn't include the malignant tissue, or it wasn't on the slide(s) examined, these malignant lesions will 

A physician removing a lesion from a patient owes a duty to determine if there's a malignancy, or some other problem like inflammation, that can't be seen by the naked eye. This is the standard of care that physicians have set for themselves, and to which you must adhere unless such services are unavailable. A radiologist who fails to send a lesion for pathologic examination breaches that duty. While he may get away with it most of the time, when an injury occurs because a malignancy remains occult until it has progressed, then the radiologist is likely to be held liable. 

And if you had referred the patient to the radiologist and you later learned that he hadn't sent the specimen for examination, from that point on, 

 that the radiologist doesn't meet the standard of care in this area. If you continue to refer patients to this radiologist, then you may be held equally negligent-and equally liable. It would be better to refer patients to someone else or to at least demand that each of your patients' lesions be sent for pathologic examination, and then follow up to make sure it was done and to learn the results. 

Always err on the side of caution, and document your actions and concerns in the patient's chart. If problems occur afterward, good documentation means you're more likely to become a witness than a defendant. 

This department answers common professional liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult,

 123 Tice Blvd., Suite 300, Woodcliff Lake, NJ 07677-7664. You may also fax your question to 201-690-5420, or e-mail it to 

Author | Eric E. Shore, DO, JD, MBA

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