Going bare? Bad idea

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 sine qua non 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 eshore@shoremedlaw.com

. 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, Medical Economics, 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 memalp@advanstar.com
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