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Compiled by Amy Dusek
While Malpractice may not be your favorite subject, it’s certainly an
important one. In the event that you come face-to-face with a potential lawsuit
you need the right person to offer a defense. In our litigious society, malpractice
is a fact of life for any health professional, and choosing the right provider
is critical for your practice.
In this day and age chiropractors have more malpractice insurance options than
ever. The luxury of more choices only means DCs must make an educated decision
to choose the provider that best fits their needs. Today’s Chiropractic
gathered four of the top chiropractic malpractice insurance providers—CBS
Malpractice, ChiroSecure, NCMIC and OUM—and asked each to weigh in on
choosing coverage and the health care industry.
Today’s Chiropractic: What is the general attitude of health
insurance carriers toward chiropractic?
Dr. Louis Sportelli, President of NCMIC: There really is no
secret here. Health insurance carriers initially were opposed to including chiropractic
in their reimbursement packages. At first, they included chiropractic reluctantly
and only after legislation required it. The attitude of the carriers goes back
to their early ties to the medical community when the two groups were closely
aligned and they viewed reimbursement of DCs as acknowledgement and acceptance
of what they considered to be non-medical, unnecessary care.
Timothy Feuling, President of CBS Malpractice: I have built
very strong bonds with many of my clients so I often receive calls from them
regarding their relationships with health insurance companies. I would
say the general consensus amongst my clients is the health insurance companies
are still cutting claims at record numbers and are basically dictating what
type and how much of care a patient in their network will receive with no regard
to the particular doctor’s care plan. Health maintenance organizations
have become financial maintenance organizations—and they only allow a
very limited number of visits to a chiropractor yet many of them will pay for
a second back surgery for the same patient, under an M.D.’s care.
Dr. Stuart Hoffman, President of ChiroSecure: Insurance is
a highly competitive business, driven by economic incentives and demands. The
growing demand for chiropractic services by consumers and the highly cost-effective
nature of chiropractic care have kept insurance companies engaged with the chiropractic
community, but anti-competitive pressures from other providers and a continuing
lack of comprehension of the full nature of chiropractic science and practice
remain a problem. Hard data does not exist regarding chiropractic coverage
by private insurance, but it remains a significant factor and some enlightened
companies have made chiropractic coverage a major selling point. Others
do not even offer chiropractic coverage as an add-on service at an extra premium. The
profession still has a lot of educating to do in this area.
TC: What is the most common affliction (as a result of chiropractic
care) that causes a patient to sue for malpractice of a chiropractor?
LS: Since chiropractors manipulate (adjust) the spine and treat
patients for spine-related complaints, it is not surprising that the most common
allegation is causing or aggravating a disc, lumbar or cervical. After that,
common allegations include: failure to diagnose, failure to refer, and a host
of miscellaneous claims, such as burns.
Susan Jones, Marketing Director for the OUM Chiropractor Program:
Somewhere over the years a rumor was started that chiropractors are sued more
for sexual misconduct allegations (SMA) than for any other reason. And though
it is true SMAs rank in the top 10 reasons for a lawsuit against a chiropractor,
it’s not the most common reason.
At OUM our statistical claims experience has shown two predominant reasons why
chiropractors are sued, 1) Failure to diagnose a patient properly, and 2) Failure
to refer. However, what statistics don’t show is the underlying emotional
reasons why patients sue their chiropractors.
According to an article written by Karen Miller for the fall issue of Stature,
OUM’s risk management and chiropractic issues magazine, “Patients
often base claims on emotions, feelings or perceptions. Most patients who are
simply dissatisfied with their care may not consider taking legal action until
their complaint is dismissed by the practitioner or they are treated rudely
by staff or their account is sent to collection. On the other hand, dissatisfied
patients are less likely to sue their chiropractor if they have open, trusting
relationships and participate in the treatment as partners.”
One more item worthy of mentioning is documentation. Administering the best
patient care based on sound, chiropractic principles coupled with open communication
with the patient may not be enough to satisfy someone who is unhappy with unexpected
treatment results. The quality of the chiropractor’s documentation in
the patient’s chart can affect whether or not a claim will be filed. And
should a claim be filed, the quality of the documentation is the foundation
of a successful defense.
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TF: The most common complaint we have received in recent years
is the patient feels more pain after their care than prior to getting care. Other
common claims are fractured ribs/bones, ruptured/herniated discs, failure to
diagnose disease or referral to proper health care specialist, sexual misconduct
allegations and alleged strokes.
That being said, by far the “mistake” which most often creates a
patient demand or lawsuit is a chiropractor’s failure to meet that individual
patient’s expectations. Doctors and their employees need to spend
enough time with their patients taking patient histories and communicating what
can or cannot be accomplished through chiropractic care. For example, a
chiropractor sees a patient for the first time who presents with chronic, long-term
back pain, perhaps from existing herniated or ruptured discs. The patient
doesn’t feel they are “cured” by the chiropractor, so they
go to an orthopedic physician who tells them they have a herniated disc and
they need surgery. The patient may then be convinced the chiropractor caused
the disc problem and sues them for causing the injury or aggravating the injury.
Often times doctors aren’t spending enough time setting clear expectations
with patients. This can quickly be done with the use of CBS Malpractice’s
Terms of Acceptance form. In addition, doctors should be discussing “retracing”
so patients know they may experience more discomfort after the adjustment. Doctors
should contact their malpractice programs to learn more about ways to avoid
claims.
SH: There is no single category of incident that can be described
as “the most common” issue bringing about a patient action. Indeed,
there is great diversity in complaints, which can range from a slight injury
such as a sprain or light fracture, to disappointment over the length of care
to disputes over billing. Also, there are circumstances in which a DC does
not have their records in good enough order to defend their care properly and
the absence of records creates a liability situation. All in all, chiropractic
malpractice actions are really quite rare compared to medical doctors, and can
be certainly minimized if not fully prevented by sound risk management practices.
TC: When choosing malpractice insurance, what are the types of policies
available? What’s your advice for choosing the best coverage?
LS: There are two main types of policy: occurrence and claims-made.
Each has its own advantages and disadvantages, depending on your situation.
Be sure to choose a company that offers a choice of policy types so that you
can customize your coverage to suit your own special needs and situation.
Essentially, an occurrence policy protects you against claims for alleged incidents
that occur while the policy is in effect, while a claims-made policy protects
you against claims for alleged incidents that occur and are reported by you
in writing during the policy period. Both occurrence and claims-made policies
provide the same insurance protection.
Many companies offer only one kind of coverage and claim it is the best because
they cannot offer both types. We recognize the “best” coverage is
what is best for doctors when they make their insurance purchase. As in all
things, needs change, values change, financial situations change and requirements
change. For that reason, we offer both types of coverage.
In terms of choosing the best coverage, the old adage “the devil is in
the details” could not be more appropriate here. The fine print in many
policies often makes the biggest difference in the coverage a company will actually
provide, should the need arise. For example, some companies say they have a
“consent to settle” policy, which means the doctor must consent
before the insurance company can settle a claim. But read their fine print.
You’ll see buried clauses and hidden terms that force you to face an arbitrator
(of the insurance company’s choosing) if the insurance company thinks
you’re being “unreasonable.”
Other companies simply don’t allow you to have any say in how your case
is handled … or require that your patients sign an arbitration agreement
prior to treatment, compromising your reputation.
Beyond reading the fine print, there are a number of things a DC should look
for when choosing a malpractice insurance company. These include:
Easy accessibility. A DC needs to decide whether to work with an insurance company
directly or through a broker. Why is that important? An insurance company provides
your malpractice protection directly, while a broker places your business with
the company of his or her choice … many times based on a commission or
availability.
Focus on chiropractic. If you’re ever sued for malpractice, it just makes
sense to have a company that knows the nuances of defending chiropractic on
your side. Many malpractice companies are knowledgeable about general medical
malpractice, but do they really understand and appreciate chiropractic?
Financial stability. Look for a company that has long-standing experience in
the industry and check its rating.
SJ: There are two types of policies available on the market
today, claims-made and occurrence. Varying amounts of limits of liability are
available for each type, generally starting at $100,000 per claim up to $1,000,000
per claim.
Legally, an insurance agent is unable to advise a doctor on which type of policy
to get. However, an agent should take the time to educate the chiropractor on
the two policy types and let him/her make the best decision for his/her
situation.
Some insurance companies strongly push the occurrence type policy, calling it
the “best.” My response is “best for whom?” The
occurrence form is much more expensive than the claims made (i.e. has more profit
built into it), yet is the same policy text as the claims made, a much more
economical and affordable choice. In addition to this, the occurrence doesn’t
allow for retro-active coverage, so if you have an occurrence policy with a
company that goes out of business, and there have been several in the past 10
years, you are caught without coverage.
A claims-made policy will allow for retro-active coverage so that if a claim
were to come through for an event that happened while you were insured by the
previous carrier, the one that has gone out of business, you are still covered
by your current carrier. The claims-made policy is less expensive and has the
same policy text as the occurrence form.
So why would an agent refer to occurrence as the “best?” Tail
coverage is built into the structure of an occurrence policy where it is
not built into the claims made. If you ever let a claims-made policy expire
without renewing coverage with your current or next carrier you must make a
decision about “tail coverage.” Either you must purchase tail coverage
from your current carrier, somehow satisfy the requirements to get tail coverage
at no additional charge from your current carrier, which is very common among
doctors who are retiring, or purchase retro-active coverage from your next carrier.
If you do not make a decision about tail coverage and you experience a lapse
in coverage, you are no longer insured for any future claim that might come
through for an event since your retro-active date, generally from the first
day you were insured. So it is as if you never even had coverage. And that
can be very worrisome.
There is also miscommunication circulating that tail coverage is expensive.
However if you take the time to run the numbers you’ll learn that tail
coverage paid out of pocket plus the claims-made policy premium is still less
expensive than the occurrence premium if the policy is renewed for two years.
The break even point is before year three. So if you plan to practice three
years or longer, it would be wiser to select a claims-made policy text. (And
that is assuming you pay for the tail coverage out of pocket. There is still
the option of getting tail coverage at no additional charge or retro-active
coverage from your next carrier which is less expensive than a tail coverage
policy.)
If you plan to practice less than three years or if you prefer to pay higher
premiums and enjoy the luxury of not having to educate yourself about tail coverage,
then the occurrence policy type is for you.
TF: When a doctor purchases a malpractice insurance policy
they have the choice of purchasing a claims-made policy or an occurrence policy,
as well as six different sets of policy limits ranging from $100,00/$300,000
to $2million/$4million in professional liability coverage. They also need
to ask specific questions to ensure they are purchasing a policy with all the
bells and whistles so they are protected from every possible angle a patient
can allege a problem.
My advice for choosing the best policy is to be sure you are first “empowered”
with the knowledge to choose the best policy for your particular practice. Claims-made
is by far the most popular type of policy sold in the multi-billion dollar malpractice
insurance industry. Most every medical doctor, dentist, massage therapist,
accountant, lawyer and insurance agent carries a claims-made policy. Unfortunately
a few companies within the chiropractic profession are guilty of persuading
chiropractors into believing occurrence is a better policy—because of
that many doctors have been left “high and dry” by their insurance
company when they later file for bankruptcy after too many years of bad losses
or poor management of funds/reserves. Claims-made doctors are able to take
their past years of coverage with them to the companies they switch to without
having to buy tail coverage as long as they always keep their policy intact
while in practice. We have seen a huge transition in the chiropractic profession
from occurrence policies to claims-made policies since programs like CBS have
come into the arena and began educating and empowering doctors with the knowledge
to understand the true differences between the two policies. This trend will
continue.
The most important aspect of any professional liability policy is the policies
coverage. Every doctor of chiropractic should call their current malpractice
program up and ask them these exact questions: Do you provide me with consent-to-settle
without a “hammer clause” limiting your liability if I don’t
want to settle the claim? Do you cover the defense of a sexual misconduct
allegation regardless of whether the patient is suing me for malpractice also? Do
you provide me with defense funds for professional board disputes (anything
less than $10,000 in defense funds is unacceptable)? Do you provide me with
defense funds in the event I am accused of violating a HIPPA law? Do you
support me in my practice objective of adjusting children based on presence
of a subluxation/adjusting all my patients based on the fact they are subluxated
and not just due to neuromusculoskeletal complaints/wellness care/care of pregnant
women? If you have never seen them support their answer in writing, tell
them to put it in writing on their letterhead with their signature.
Do your homework—don’t just buy a policy because its cheap—buy
it because it will provide you with 100 percent security that if you are ever
accused of anything, you will be covered.
TC: Why has there been so much controversy regarding malpractice
insurance from groups within the profession?
LS: Frankly, I have a hard time understanding why there has
been so much controversy with the entire aspect of chiropractic malpractice
insurance. Our policyholders are generally covered by NCMIC’s professional
liability coverage for everything included in their state’s scope of practice.
Though there are many different approaches to chiropractic, NCMIC appreciates
and insures them all. NCMIC’s expertise is in providing insurance protection—our
policyholders’ expertise is in how they choose to practice.
SJ: To my knowledge, there is no controversy regarding malpractice
insurance. All reputable, solid providers of quality chiropractor professional
liability insurance such as OUM and several others available on the market,
allow their policyholders to practice their profession as they see fit, as long
as it is in full compliance with their state specified scope of practice.
TF: I wouldn’t say there has been so much controversy
between groups within the profession. I would say the competition for market
share has increased. Malpractice insurance is a very competitive industry and
malpractice programs enter the chiropractic market with their own personalities
and purpose for being here. A few of us are very subluxation-based and
feel many of the other programs available to chiropractors haven’t shown
any support of this type of care—as proven by the cases they settle out
of court that should have gone to trial and proven by their actions like financially
supporting the MERCY conference guidelines which don’t allow for children
to be adjusted unless they have specific low back and neck pain or for any patient
to be adjusted past 10 to 12 visits unless the doctor can prove continued medical
necessity (subluxation doesn’t count) or promotion of vaccinations and
other values which don’t bode well with our professions core values. Even
others are owned by medical companies that don’t even believe in chiropractic;
though they won’t turn their back on the profits derived from a chiropractic
malpractice program. Doctors need to weed through the controversy and insure
with the program that reflects their values and provides the broadest coverage
at a competitive rate.
I encourage doctors to insure themselves with a malpractice program that doesn’t
just talk the talk, but walks the walk—if you want to be defended as a
subluxation-based chiropractor you better insure yourself with a subluxation-based
company that proves they will support you every step of the way. Be sure they
are utilizing the CCP Clinical Guidelines that support subluxation-based care.
TC: What makes you stand out from other insurance companies?
LS: When you’re insured by NCMIC, you work directly with
us as your insurance company. Most of our competitors are brokers or use brokers,
selling for big insurance companies. These brokered relationships may work well
for many other professions, but we believe the chiropractic profession is better
served with specific expertise in chiropractic because of the outstanding service
it enables us to provide our policyholders. This is especially true if you have
a claim. NCMIC’s claims department is very familiar with the nuances of
chiropractic claims and has a national network of attorneys who respect and
appreciate the chiropractic profession.
OUM: The OUM Chiropractor Program takes pride in educating
each chiropractor that calls for a malpractice insurance quote. We take time
with each doctor to fully explain the choices that are available, for example
different policy types and the variety of limits of liability, and emphasizing
the importance of understanding the policy being purchased.
TF: CBS Malpractice is the first malpractice program to defend
chiropractors with the only scientific chiropractic evidence-based guidelines. CBS
stands out from the competition because we started our program for the right
reason—to fill a huge void in the industry—we wanted to be sure
that chiropractors would be defended for their practice objective of adjusting
every man, woman and child, based on the presence of subluxation, regardless
of the presence of symptoms, conditions or disease. There wasn’t
any other program around that outwardly supported this type of care. We
are the “malpractice bodyguards” for the tens of thousands of subluxation-based
chiropractors who care about long-term results and whose practice objectives
include long-term corrective care/wellness care/maintenance care/performance
care, in addition to protecting doctors from all the patients who come in with
the typical musculoskeletal complaints.
SH: ChiroSecure is the only professional liability endorsed
by the International Chiropractors Association. We utilize only A-rated
carriers who are admitted to state funded status, so that the doctor will always
have coverage, no matter what happens in the insurance market. ChiroSecure
has one of the highest levels of policy-holder satisfaction in the profession,
perhaps because the program is run by a chiropractor, who is available to serve
and assist from the unique perspective of actual practice. This itself
is a unique and valuable asset. ChiroSecure’s rates are highly competitive
and our service is outstanding, and we have a proven 14-year track record of
durability and reliability.
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