Select three common models of managed health care organizations as discussed in Chapter 23. Identify the pros and cons for each chosen model. Give
Select three common models of managed health care organizations as discussed in Chapter 23. Identify the pros and cons for each chosen model. Give suggestions to strengthen the weaknesses of the chosen models.
23
Professional Liability Insurance
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It’s Your Gavel… |
CRIMINAL ACTS AND INSURANCE COVERAGE
A physician was convicted for the sexual assault of a minor. He was then sued in federal court for civil damages. An insurer had issued medical malpractice policies to the physician. Under the policies, the insurer agreed to pay on behalf of the insured all sums that the insured became legally obligated to pay as damages because of bodily injury or personal injury resulting from rendering or failing to render, during the policy period, professional services by the insured. The policies contained an express exclusion barring liability of the insurer for any acts of the insured arising out of the performance of a criminal act.
Does sexual assault constitute rendering professional services within the coverage provisions of the physician’s insurance policy? Should a malpractice insurer be required to indemnify a physician for liability resulting from the sexual assault of a minor?1
WHAT IS YOUR VERDICT?
I never was ruined but twice—once when I gained a lawsuit, and once when I lost one.
—Francois Marie de Voltaire (1694–1778)
Learning Objectives
The reader, upon completion of this chapter, will be able to:
• Describe the purpose of an insurance policy, including risk categories, and the importance of professionals to carry professional liability insurance.
• Explain the elements and conditions of an insurance policy.
• Describe the investigation and settlement of claims.
This chapter introduces the reader to some of the basic concepts related to professional liability insurance. The purpose of liability insurance is to spread the risk of economic loss among members of a group who share common risks (for example, an obstetrician would share risk with other obstetricians). As risks increase, premiums increase to cover the associated risks. The premiums are placed in a shared risk fund from which monies are drawn to cover the costs of lawsuits. Because of skyrocketing malpractice premiums, some physicians limit their practice to less costly procedures, restrict their practices by not accepting new patients, decide to close their practice, or accept a position as an employee in a hospital setting.
Medical malpractice insurance is subject to the cyclical nature of the insurance market. Problems intrinsic in malpractice insurance include the uncertainty of the U.S. legal system, inflation, damages awarded, emerging technology, and high-risk procedures.
23.1 INSURANCE POLICIES
Insurance is a contract that creates legal obligations on the part of both the insured and the insurer. It is a contract in which the insurer agrees to assume certain risks of the insured for consideration or payment of a premium. Under the terms of the contract, also known as the insurance policy, the insurer promises to pay a specific amount of money if a specified event takes place. An insurance policy contains three necessary elements: (1) identification of the risk covered, (2) the specific amount payable, and (3) the specified occurrence.
Insurance companies are required by the laws of the different states to issue only policies that contain certain mandated provisions and to maintain certain financial reserves to guarantee to policyholders that their expectations will be met when coverage is needed. The basic underlying concept of insurance is the spreading of risk. By writing coverage for a large enough pool of individuals, the company has determined actuarially that a certain number of claims will arise within that pool, and if the premium structure has been established correctly and the prediction of claims made accurately, the company ought to be able to meet those claims and return a profit to its shareholders.
Risk Categories
A risk is the possibility that a financial loss will occur. The main function of insurance is to provide security against this loss. Insurance does not prevent or hinder the occurrence of the loss, but it does compensate for the damages.
An insured individual may be exposed to three categories of risk:
1. Property loss or damage: the possibility that an insured’s property may be damaged or destroyed by fire, flood, tornado, hurricane, or other catastrophe.
2. Personal injury: the possibility that the insured may be injured in an accident or may become ill; the possibility of death is a personal risk covered in the typical life insurance plan.
3. Legal liability risk: the possibility that the insured may become legally liable to pay money damages to another and includes accident and professional liability insurance.
Insurance Policies
Insurance policies include occurrence policies, which cover all incidents that arise during a policy year, regardless of when they are reported to the insurer; and claims-made policies, which cover only those claims made or reported during the policy year. Tail coverage policies provide for an uninterrupted extension of an insurance policy period. Umbrella policies cover awards over the amount provided in the basic policy coverage. The dollar amount of coverage is specified in the policy.
23.2 LIABILITY OF THE PROFESSIONAL
An individual who provides professional services to another person may be legally responsible for any harm the person suffers as a result of negligence. Many professionals protect themselves from their exposure to a legal loss by acquiring a professional liability insurance policy.
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$44M Paid in Nurse Practitioner Liability Claims Over Past 5 Years: Report |
According to the “Nurse Practitioner 2012 Liability Update: A Three-part Approach,” the average malpractice indemnity payment (judgments and settlements) for the five-year study period has increased 19 percent since the 2009 NSO/CNA nurse practitioner claims analysis, rising from $186,282 to $221,852. The average cost to defend a lawsuit also rose to $63,792.
—Claims Journal, November 27, 20122
All Professionals Need Insurance
All healthcare professionals should carry malpractice insurance. Even though a hospital, for example, as an employer can be held liable for the acts of its employees under the doctrine of respondeat superior, the employee can be financially liable to the employer for his or her own negligent acts. From a cost–benefit standpoint, the answer to the question, “Do I really need insurance?” is yes. Insurance premiums for allied health professionals are relatively reasonable.
Malpractice insurance coverage is especially important if a caregiver is working:
• As a volunteer at a clinic or health fair not sponsored by his or her employer
• As an independent contractor providing a service in a patient’s home
• For an independent agency or registry
• For an organization that is covered by an insurance policy that has an exclusionary provision by which the insurance company disclaims liability for malpractice actions brought against the insured organization
If a private agency has inadequate insurance coverage, there is always a possibility that recovery will be sought against a nurse’s estate.
There are disadvantages to nurses obtaining malpractice insurance. First, acquisition of malpractice coverage by nurses could encourage naming nurses as defendants in malpractice suits. Second, an increase in complaints against nurses could cause an increase in insurance premiums, eventually placing the cost of malpractice insurance outside their financial means.
Advanced Practice Nurse Practitioner
Nurse practitioners are experiencing, on average, a 2.3% increase on indemnity and expense payments. This is due in part to the expanding roles of nurse practitioners as they take on various responsibilities that have historically been performed by physicians. Claims often involve, as with physicians, the failure to properly assess and diagnose patients.3
Registered Nurse
Registered nurses, as well as advanced practice nurse practitioners, continue to evolve as they perform additional responsibilities. A nurse’s insurance policy was primary with respect to the first $100,000 of a settlement that resulted from a malpractice action against the nurse in American Nurses Association v. Passaic General Hospital.4 The National Fire Insurance Company had issued an insurance policy covering the contractual obligation of the American Nurses Association to its members. The New Jersey Supreme Court held that the judgment against the nurse in excess of $100,000 was properly apportioned equally between the hospital’s liability insurer and the association’s liability insurer.
The court in Jones v. Medox, Inc.5 held that only the nurse’s insurance carrier, Globe Insurance, was liable for injuries sustained by the plaintiff while at Doctors Hospital; these injuries resulted from an injection administered by the nurse. Medox, Inc., a corporation providing temporary medical personnel to Doctors Hospital, employed Ms. Jones. After settlement of the claim against the nurse, the hospital, and the nurse’s employer, the nurse and her insurer brought an action against Doctors Hospital, Medox, Inc., and their insurers. The trial court granted summary judgment in favor of the hospital and its insurer and dismissed the claim against Medox, Inc., and its insurer.
Private Duty Nurse
A private duty nurse is not considered an employee but rather is engaged by the patient (or the patient’s family) to provide services to that patient. As such, the nurse should obtain personal coverage. The patient engaging the nurse would be well advised to ask about the availability of such coverage, as would the institution in which the nurse is providing professional care for that patient.
Even though a patient employs a special duty nurse, an organization can be liable for damages resulting from a nurse’s negligent conduct. The existence of an employer–employee relationship, which determines the applicability of respondeat superior, is a matter to be determined by the jury.
An organization can also be liable for damages awarded in a malpractice action if a nurse and his or her registry have inadequate insurance to cover a jury award. In such instances, an organization then would have a right to seek recovery from the nurse and the registry.
Students
The potential for liability is not limited to licensed professionals. Students engaged in learning a profession who engage in activities involving the care and treatment of others face potential liability for their acts. For this reason, these individuals often obtain personal insurance coverage or assure themselves of such coverage through the organization in which they are employed or the educational institution in which they are enrolled.
23.3 THE INSURANCE AGREEMENT
Healthcare organizations, nurses, physicians, and other healthcare practitioners who are covered by an insurance policy must recognize the rights and duties inherent in the policy. The professional being insured should be able to identify the risks that are covered, the amount of coverage, and the conditions of the contract.
Although the policies of different insurance companies may vary, the standard policy usually provides that the insurance company will pay on behalf of the insured all sums that the insured shall become legally obligated to pay as damages because of injury arising out of malpractice error, as well as mistakes in rendering or failing to render professional services.
The insurer, under the terms of an insurance policy, has a legal obligation to pay the sum that has been agreed to or determined by a court, up to the policy limit, including legal fees. Under a professional liability policy, the professional is protected from damages arising from rendering or failing to render professional services. Thus, a professional who performs a negligent act resulting in legal liability or who fails to perform a necessary act (thereby incurring damages) is personally protected from paying an injured party. The insurer makes payment of damages to the injured party.
Defense and Settlement
In the defense and settlement portion of the insurance policy, the insured and the insurance company agree that the company will defend any lawsuit against the insured arising from performance or nonperformance of professional services. The insurance company is delegated the power to effect a settlement of any claims as it deems necessary. In a professional liability policy, the duty of the insurer under this clause is limited to the defense of lawsuits against the insured that are a consequence of professional services.
The insurance company fulfills its obligation to provide a defense by engaging the services of an attorney on behalf of the insured. The obligation of the attorney is to the insured directly, because the insured is the attorney’s client. There is, to some extent, a divided loyalty because the attorney looks to the insurance company to obtain business. Nevertheless, the attorney–client relationship exists between only the attorney and the insured, and the insured has the right to expect the attorney to fulfill the requirements of such a relationship.
Settlements and Awards
Because of the costs of proceeding to trial, both the plaintiff’s lawyer and the defendant’s insurer often settle out of court. Two types of awards are offered: direct compensation for medical bills, expenses, and lost wages; and compensation for pain and suffering for noneconomic losses and, in rare cases, punitive damages for grossly negligent conduct or behavior. If an insurance company has established the right to obtain a settlement of any claim prior to trial, the company’s only obligation is to act reasonably and not to the detriment of the insured.
Policy Period
The period of the policy is stated in the insurance contract. Under an occurrence policy, the contract provides protection only for claims that occur during the time frame within which the policy is stated to be in effect. Any incident that occurs before or after the policy period would not be covered under the insuring agreement. Occurrence policies provide coverage for all claims that may arise out of a policy period. The actual reporting time has no bearing on the validity of the claim, so long as it is filed before the applicable statute of limitations tolls. Although the reporting time has no bearing on the validity of the claim from the standpoint of coverage under the policy, the conditions of the policy will require notice within a specified time. Failure to provide such notice could void the insurer’s obligation under the policy if it can be demonstrated that the carrier’s position was compromised as a result of filing an untimely claim or report.
A claims-made policy provides coverage for only those claims instituted during the policy period. Notice of a claim is required during the policy period. Failure to give notice of a claim to the insurer in a claims-made policy until after the policy expires can result in denial by the insurance company to cover the claim.
Coverage: Amount Payable
The amount to be paid by an insurer is determined by the amount of damages incurred by the injured party. The insurance company and the injured party may negotiate a settlement prior to or during trial. Some states have provisions mandating that consent of the court must be obtained prior to the settlement of a negligence claim on behalf of a minor.
In any event, the insurance company will pay the injured party no more than the maximum limit stated in the insurance policy. The insured professional must personally pay any damages that exceed the policy limits. For example, under a policy with a maximum coverage of $1 million for each claim and $3 million for aggregate claims (the total amount payable to all injured parties), the insured must pay any amount over $1 million on each individual claim and any amount over $3 million in a policy period.
Punitive Damages
A claim for punitive damages awarded in a malpractice suit was submitted to an insurance carrier for payment but was subsequently denied by the carrier.6 The insurance carrier cited Florida public policy, which prohibits coverage of punitive damage awards.
23.4 INTENTIONAL TORTS: COVERAGE DENIED
An insurer has no duty to defend or provide coverage for intentional torts. Contracts insuring against loss from intentional wrongs are generally void as being against public policy.
No Duty to Cover Intentional Torts
An action was brought by a comprehensive liability insurer for declaratory judgment as to its duty to defend the insured in civil actions alleging slander, interference with business relations, and violations of the federal antitrust laws in St. Paul Insurance Co. v. Talladega Nursing Home.7 The federal district court ruled for the insurer, and the nursing facility appealed. The Fifth Circuit held that the insurer has no duty to defend or provide coverage for alleged intentional torts. Under Alabama law, all contracts insuring against loss from intentional wrongs are void as being against public policy.
Therapist’s Sexual Affair with Patient
A therapist’s sexual affair with a patient was not covered by the provider’s liability insurance in Scottsdale Ins. Co. v. Flowers.8 The district court was found not to ha
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