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Fam Pract Manag. 2005 Feb;12(2):70.

When to notify your malpractice insurer about a claim


Am I required to inform my insurance company if I have reason to believe a malpractice claim might be made against me?

Most insurance policies require policy owners to give immediate written notice to the insurer of any claim. These clauses differ as to the time limits and the method of notification that apply. The purpose of immediate notice is to allow an investigation of the claim while the events are within the recent memory of applicable witnesses. If an insured fails to provide timely notice of a claim, the insurance company may try to avoid providing coverage for the claim.

To ensure compliance with the timely notice provision, a physician must inform his or her insurance company once the patient has filed a complaint. If you receive oral or written notice of an intention to file a claim, in some cases it may not be clear to you whether this information serves as notice of a claim. It is important in these instances to consult your policy and perhaps an attorney as well before deciding whether notice of an informal claim should be submitted.

A private attorney can be helpful in requiring the insurance company to open a claim file even before a complaint is filed. This might be helpful in a case where a physician is aware that a particular piece of equipment malfunctioned during an operative procedure, for example. The physician may want to advance a claim against the manufacturer and distributor of the equipment and also have the protective guidance of his or her professional malpractice insurer so as not to jeopardize coverage if a claim is ultimately filed by the patient.

Document refills thoroughly


Do prescription refills need to be noted in the main “progress note” section of the chart, or can they be documented in a separate “medication” section?

Either section is fine. Documentation should include the date of the order, the name of the provider ordering the refill, the prescription itself and any instructions provided. It might also be helpful to indicate how the prescription was ordered, for example, whether it was called in to the pharmacy or issued to the patient.

Agreements to limit liability


I’ve been told I should require my patients to sign a form that limits my liability in the event of a malpractice claim. For example, it could require that any claim be submitted to arbitration, that the arbitration be binding and that any claim be limited to $250,000 for all damages. Patients who decline to sign the form would need to see another doctor. Is this a viable risk-management strategy?

Liability agreements can reduce your risk; however, an improperly prepared agreement can create more problems than it solves. There are two problems with the agreement described above.

First, you state that if the patient were to refuse to sign the document, treatment would be refused. I would recommend against such a provision for moral, ethical and legal reasons. Most state courts would consider such a provision tantamount to coercion or duress and a basis to declare the agreement void. I would also be concerned that a plaintiff’s lawyer may try to use such a clause as a basis for a lawsuit, including claims for punitive damages. For example, a plaintiff’s lawyer may allege that the patient was not provided treatment because the patient refused to sign the release, or that the plaintiff’s medical condition worsened as a result of the refusal. If the latter were to occur with an existing patient, the plaintiff’s lawyer could also claim that the patient was abandoned.

Second, there’s some debate as to whether arbitration is a viable alternative. I contend that it is not. With arbitration, there will be two trials rather than one. Most states will allow appeals and a de novo jury trial, even though your agreement asserts that the results of arbitrations are “binding.”

Further, many experienced defense lawyers believe physicians have a better chance of winning cases before a jury, rather than before arbitrators. In many jurisdictions, jury verdicts now approach 90 percent for the defense. Lawyers on arbitration panels are more likely to be plaintiff-oriented.

A properly prepared agreement should make it clear that treatment will be provided even if the patient refuses to sign the release, and it should reference the problems created by the “malpractice crisis.” Most importantly, the agreement should make an attempt to provide “consideration” (i.e., something promised to the patient in return for his or her agreement), the legal necessity for a valid contract. Using very basic language understandable to any lay person, the agreement should explain exactly what the patient is being asked to sign and why.

* Denotes member of FP Assist, the AAFP’s online clearinghouse for consultants and attorneys.



Copyright © 2005 by the American Academy of Family Physicians.
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