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Changes in medical professional liability

May 15, 2011
by Richard Willetts, CPCU, ARM
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Shifts in policy and service delivery are exposing providers to risk

“Change” is certainly the big buzzword right now in the behavioral healthcare industry. Given all of the dramatic changes affecting the field, you might not have given much thought to the rapidly changing landscape of medical professional liability, and how it might affect your organization's insurance and risk management program.

Looking at it from the insurance company perspective, here are some areas of concern.

Tort reform rollbacks

About 30 states have some form of cap on non-economic damages (pain and suffering) that can be awarded in a medical malpractice lawsuit. These caps and other tort reform measures, implemented by states to curb spiraling malpractice insurance costs, have come under attack in recent years by trial lawyers as “unconstitutional” (most recently in Illinois and Georgia).

An erosion of tort reform laws ultimately could lead to greater frequency and severity of successful malpractice claims, and in turn to higher insurance premiums for providers. As a behavioral health provider who would be directly affected by adverse legislation, you should at least be aware of the laws in your state, and support any existing malpractice tort reforms that hold down your insurance costs and maintain the availability of care.

Information technology

New technology, including electronic health records, telehealth and smart phone apps, will create new exposures to claims and lawsuits. Will providers have the time and resources to aggregate, coordinate and appropriately respond to all of this information?

Additional claim handling expenses are anticipated in order to complete “e-discovery,” gathering multiple types of data and records stored on different servers and on a variety of electronic devices. If you are utilizing or planning to utilize these technologies, you should consider what steps you will take to secure the privacy of patient information. A relatively new insurance product is available to protect your organization from cyber liability claims, as well as provide expense reimbursement and support to handle a data breach properly.

Changes in science, medicine

Advances in neurotechnology and pharmacology are creating entirely new treatment protocols and new possibilities for misuse, misdiagnosis and clinical errors and omissions. New pharmaceuticals and expanded use of existing pharmaceuticals for “off label” uses, as well as new blood tests and brain scans, create long-term exposures to claims and litigation where the potential extent of adverse outcomes or side effects could remain unknown for many years.

The development and increasing popularity of some new diagnostic tests create an inherent medical professional exposure. You can be sued for failure to order appropriate diagnostic tests (see “defensive medicine”) or for inaccurate diagnosis of test results. The implementation of any new clinical procedure or treatment protocol should be carefully analyzed for the potential to cause harm to patients and expose the care provider to legal liability. Food and Drug Administration (FDA) approval should be considered as a liability mitigator, when evaluating liability risk management plans.

Expanded services

Patients and their families are more informed and empowered than ever before, with greatly increased access to information about quality of care and services available to them. Expectations for a broad range of high-quality services, market competition forces, and payer requirements are all driving providers to modify and expand their service offerings. Wide-ranging new problems from primary care to child care are exposing treatment providers to new legal liability exposures that they may have no previous experience addressing.

A provider also can be exposed to legal liability when new services are contracted out to other providers. It is imperative that providers work with their legal and insurance counsel to review any new services or contractual relationships to make sure that the proper contractual wording and insurance coverage is in place before a new service is offered to patients.

Health reform laws

Behavioral healthcare providers face a new wave of liability exposures as the Affordable Care Act reshapes the healthcare landscape and creates a new “national standard of care.” These changes will include increased workloads and more significant roles in patient care, based on demands for higher levels of quality, cost-effectiveness and patient safety.

The addition of tens of millions of people with new access to healthcare will almost certainly lead to an increase in claims caused by an overstressed system. Shortages of many types of professionals could increase the likelihood of claims and could put more healthcare professionals at risk of being affected by the actions of their peers, as work is increasingly delegated to more cost-effective paraprofessionals or referred to other allied providers.

The organizational transition to accountable care organizations and medical homes is creating a high level of uncertainty (particularly regarding inter-organizational contractual exposures) that affects a provider's risk profile, and vulnerability to successful litigation. There are some concerns that more frequent, or even mandatory, disclosure of medical errors could provide powerful ammunition to plaintiff attorneys. It is important that organizations consult with their legal and risk management advisers on proactive ways to reduce these new exposures to professional liability, and revisit their plans as the legislation evolves.