Hidden Issues in the Need for Tort Reform

As hard as it may be to imagine, the present-day, hard reality ramifications to physicians who are sued for malpractice far exceed the oft state, and understandingly terrifying, prospect of a verdict that exceeds their insurance policy and jeopardizes their personal assets. In fact, the overwhelming majority of malpractice cases are won by the physician and/or resolved within the limits of their policy of insurance. However, there are “hidden” ramifications to being sued for malpractice that should drive every physician to immediately and tirelessly demand the passage of genuine tort reform.

MALPRACTICE REVIEW’

First, physician must come to understand the hard, and hidden, reality that every malpractice action is reviewed, and reviewed again, in a variety of potentially adverse settings – both during the pendency of the action and after it is resolved. Physicians who assume these settings to be non-adverse only expose themselves to further, and potentially more significant, losses. These settings include, but are not limited to:

Hospital Medical Staff/Quality Assurance Committee Reviews

Each physician who seeks and secures privileges at a hospital has also thereby agreed to be subject to Quality Assurance/Peer Reviews under the terms as the institution sees fit. Rather than relying upon the presumed “confidentiality” of that process (a notion which is under attach on a daily basis by plaintiff’s attorneys), physicians should be aware that any form of public discipline, related to the patient for which suit has been filed, carries mandatory public disclosure and renders them virtually indefensible in that malpractice action.

Risk Management Measures

Every physician must recognize that there are no benign, collegial or informal reviews of their care. Any physician who is subject to review must only appear after becoming as prepared as possible – obtaining a complete copy of the chart, reviewing the chart carefully and presenting as strong a defense as possible.

Malpractice Insurance Company Reviews

In many instances when an action is initially filed, a malpractice carrier will seek to determine if the care and treatment was appropriate (i.e., in accordance with the standard of care). In order to do so, the physician may well be interviewed or asked to participate in a quasi-peer review meeting. The results of such a review will dictate which virtually permanent designation that action will bear – “defensible” or not.

Risk Management Measures

Just as in the case of a hospital based review, it must be recognized that such a review is neither an informal nor a casual event. Physicians appearing before such a Committee, or being interviewed by assigned defense counsel, must be fully prepared to vigorously defend their care and treatment of the patient – even to go as far as to potentially secure their own expert witnesses to aid them in the defense of that care.

It must be also revealed that once the action is concluded, the ramifications are far from concluded. Reporting of that conclusion, either through settlement or through adverse verdict, is a mandatory and critical part of the litigation.

National Practitioner Data Bank (“NPDB”)

This entity is centralized, federal depository off all relevant data as to every physician in the United States. Akin to a specialized “credit agency” for physicians’ reputations, it is not available to the general public but is reviewed and scrutinized on a routine basis by those entities which credential physicians. When a malpractice action is resolved, the insurance carrier must report that resolution to the NPDB. How the resolution is apportioned between defendants, and/or whose name the settlement is reported under, can be part of the internal defense discussions and even part of the external negotiations leading up to the resolution.

Risk Management Measures

In resolving an action, every physician should seek to be dismissed from the action in conjunction with settlement wherever possible. If dismissal is unavailable, every effort should be made to have the settlement designated/reported under another party and/or entity whenever possible. Thereafter, every physician can, and must, obtain a copy of their NPDB report to verify it is accurate, up to date and does not contain items or information which warrant a physician’s counter-statement or explanation (which physicians are permitted to include). The NPDB site is found at http://www.npdb-hipdb.com

New York State Physician Profile

Created after a series of tabloid reports as to egregious actions of a small number of physicians, the NYSPP is an internet listing of New York licensed physicians and notably – available to the general public. Maintained by the State of New York, Department of Health, it contains data as to a physician’s education, training malpractice history and disciplinary history. Of note, it also permits physicians to place explanations and/or counterstatements in response to “negative” information and also allows for a sizeable placement of positive marketing data (office locations, languages spoken, health plan enrollments, practice policy statements, etc).

Risk Management Measures

Upon resolution of a malpractice action, and thereafter upon a routine basis, this site should be carefully reviewed for accuracy and potential reply statements as to the physician’s settlement and/or loss of a prior malpractice actions (along with other potential marketing opportunities). It should also be noted by every physician that the burden to ensure that even negative information is listed upon the NYSPP is placed squarely upon the physician. In fact, failure to do so can subject the physician to potential discipline by the Office of Professional Medical Misconduct. The NYSPP site can be found at http://www.nydoctorprofile.com.

FACING REALITIES

There is no question that “runaway juries” and excess verdicts are more than ample justifications for the advocacy of tort reform. However, as we await the achievement of such a worthwhile goal, these “hidden” risks are the hard realities we must face today. It is not the simply “escape” from a malpractice action that provides the end to the threat. Rather, failing to understand, squarely face and actively risk manage, these realities may make the end of a malpractice action only the beginning.