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Malpractice Coverage For Medical Board Investigation

Malpractice insurance is a form of professional insurance and it’s meant to cover your medical license from any risk. As a professional you are liable for the advice you give and the services you offer. You should be protected across the entire spectrum of your profession. I found out that my work’s malpractice insurance didn’t cover me for a medical board investigation so I thought it would make for an interesting post.

The majority of malpractice claims start out as medical board complaints and, therefore, a medical board investigation. Quite a few malpractice insurance providers realize this and will want to represent their clients early to prevent further problems down the line.

It’s important to understand that you are under threat by your patients, your employer, your medical board, and the various payors such as Medicaid/Medicare and private insurance companies.

Any of these entities can spark an investigation or a lawsuit. Though it’s impossible to be protected against every single kind of event, you want to be protected against the common factors.

Whatever can go wrong will eventually go wrong.

There are several kinds of risk that healthcare professionals face. Let’s review each one.

  1. medical malpractice risk
  2. information privacy risk
  3. regulatory risk

 

1. Medical Malpractice Risks

This risk is familiar to most healthcare professionals.

Among physicians, the annual rate of those facing malpractice is about 8%. So for every 13 physicians, one faces a malpractice suit any given year.

After 15 years of practice more than 50% of physicians will have a malpractice claim and 35 years after practice the number is closer to 90%.

That means that only 10% of physicians will make it out without having to face a malpractice claim.

Anatomy Of A Medical Malpractice Policy

Defense Costs. Your policy will either pay for defense costs “outside” or “inside” your limits of liability. So if you are covered for $1,000,000 and had $200,000 in legal expenses then you’d only have $800,000 left to pay for a potential judgement against you or a settlement.

Definition of a claim. If you know an adverse event has taken place and there is a high chance for a malpractice claim then you’d want to report that to your carrier right away. But some malpractice insurance carriers don’t recognize this as a legit claim until a suit takes place.

Settle without your consent. It may be financially advantageous for your insurance carrier to settle certain cases which can look bad on your record. You can obtain a “consent to settle” clause so that the carrier must first obtain your permission before settling.

Pay attention to exclusions. There will be exclusions listed on your policy which will state when the clinician is not covered. It might be when you’re doing volunteer work, performing procedures for which you haven’t been signed off on, performing administrative duties, or consulting.

Limits of Liability. This is the maximum dollar sum your insurance company will pay. It’s broken up into 2 parts, the first number is what’s covered per incidence and the second number is how much is paid out in a single year ($1M/$3M). If you are covered for $1 million per incident but had a lawsuit for $1.2 million then you are responsible for the other $200,000 out of pocket. You still have another $1.8 million of coverage left for the year.

Reporting versus occurrence. It’s important to pay attention to the kind of policy you have in regards to the reporting of a claim. The difference is that a claim may be accepted or denied by your medical malpractice insurance carrier based on when it occurred versus when it was reported.

 

2. Information Privacy Risk

There was a recent court case of a woman whose picture of a non-identifiable body part was uploaded to a medical forum. This image was shared for the purposes of information exchange between healthcare professionals.

However, this was a digital image taken by a smartphone and such images contain EXIF (Exchangeable Image File) data. This data was linked back to the patient and a breach of privacy proven and that physician had to deal with major consequences.

Digital Private Patient Data

As a healthcare professional you are at risk of unintentionally disseminating private patient data. It could be that your work hardware was stolen or lost, or your computer was hacked into. You could have posted something online that broke a privacy law. And there are a lot of privacy laws as you’ll see below.

There are numerous other Personally Identifiable Information (PII) that can slip through you digital hands.

HIPAA is just one of the many privacy laws trying to protect PII data but there are others as well:

  • HITECH – Patient’s electronic health records
  • GLBA – Patient’s financial information protection
  • Privacy Act – Data collection from patients
  • COPPA – Data protection for children <13
  • FERPA – Protection of student information data
  • FCRA – Patient’s credit report information

 

Breach Of Patient Data

Imagine a situation where a patient writes a false online review of your medical practice. You may respond to this online or write a blog post about it or tweet bout it. If any of that information can be linked to that patient and appears retaliatory then you would be at risk.

Remember, we’re not talking about whether a lawsuit would be successful. That’s rarely the issue; the headache and the legal fees to even screen a lawsuit for merit is enough to cause a lot of drama in your life.

Medical malpractice insurance carriers are aware of this and offer special riders just for such scenarios. These are private malpractice carriers which are competing with the in-house malpractice insurance of large medical groups.

So does your medical groups have your best interest in mind or its own?

Will they offer you all the riders necessary to protect your career or to cover their bottom line?

Consider this: your medical group gives you a work laptop which has a VPN with end-to-end encryption. The VPN fails or your firewall gets hacked and data is obtained. If your medical group doesn’t offer you coverage for such an event then they would be putting you at risk by giving you such hardware.

 

3. Regulatory Risks

The final risk that I want to discuss is regulatory risk. Think of this in terms of all the various regulatory bodies which govern your practice. The following circumstances could involve regulatory risk:

  • improper billing practices
  • your employees retaliating
  • whistleblowers
  • EMTALA/Stark violations
  • HIPAA violations
  • off-label use of equipment or medication
  • media content liability
  • oversight of affiliate clinicians
  • telemedicine issues
  • social media presence
  • digital apps malfunctioning
  • communications with patients
  • medical board investigation

 

As healthcare professionals we think of medical malpractice insurance as a way to mitigate our risk when practicing medicine. But medicine has evolved:

  • we are digitally communicating with patients
  • dictating into a microphone
  • performing billing for our medical group
  • working with hardware and software
  • prescribing off-label medications
  • recommending herbals and supplements
  • diagnosing based on images provided by patients
  • overseeing students and affiliate clinicians
  • we are being recorded in the exam room by patients and family
  • following practice guidelines written by our medical groups
  • performing telehealth
  • dealing with consumer complaints to the medical board
  • tasked with protecting your employer’s resources (compliance)

 

Medical Board Investigation

I found out the hard way that my medical group doesn’t cover its clinicians with coverage when it comes to medical board investigations or any regulatory issue that involves me individually.

Once the medical board start the investigation process there are multiple steps in which you and your lawyer will need to be involved. The medical board investigation process involves:

  • the inquiry phase
  • the interview phase
  • a possible surprise visit to your work
  • interrogation of your colleagues and friends
  • appearance before the board
  • the final judgement
  • and finally the haggling as to what will go in your record

 

For all the above you would be left on your own if your medical malpractice insurance doesn’t cover you for such regulatory risks. Not to mention, during their investigation the medical board will often find a few other things you did wrong and can bring those charges up against you as well.

Social Media Risk

Social media brings its own risks to the healthcare professional. Regulatory risk is involved here because the following regulations could be transgressed:

  1. Professional ethics (regulated by your medical board)
  2. Medical malpractice (whatever you shared about the case)
  3. Federal regulations (patient data privacy issues)
  4. Employment contracts (individual employer regulations)

A patient might find you online and send you information. Just for you receiving such information puts you in the position of having to protect it.

You may make a comment about the way your job handles certain cases. This can have major consequences for you both in terms of professionalism and your employer’s reputation.

Media Content Liability Example

Imagine that you write a small blurb on your website about how lemon balm can help with mood issues for patients with depression. The article gets picked up, goes viral, it gets shared on DIY health websites and a string of complications get linked to the use of lemon balm and concomitant SSRI use.

Either a class action lawsuit takes place against the manufacturer or you are mentioned for the heck of it by one of the many lawyers who will jump on such media frenzy. Does your malpractice insurance carrier cover you for such media content risk?

 

What Steps You Can Take

  1. Obtain the details of the contract of your current medical malpractice insurance.
  2. Have a private medical malpractice insurance company review your current employer’s malpractice coverage.
  3. Identify the gaps that exist and decide whether you are willing to pay for extra covered independently in order to be covered.
  4. Lower your risk by understanding how you can get on the wrong person’s radar.

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