A Blog by PRMS CEO and President Martin G. Tracy, JD, ARM

Need Medical Malpractice Coverage. Now What?

A Guest Blog by Rich Stagnato, PRMS Accounts Representative

If you are not employed by a hospital or government facility, you will likely need your own medical malpractice policy.

You should research your medical malpractice insurance and risk management needs by reviewing policy and feature differences. Ultimately, you have to feel comfortable that the people you are buying your coverage from are the people you'll feel comfortable working with in the event you need to file a claim (or talk about a potential claim).

Once you've made a decision, apply for coverage:

1. 1. Contact us so we can send you an application by email, fax or mail. You can also download a copy at www.psychprogram.com in the "Apply Today!" section.
2. 2. Write or type your responses on the application. You can type directly on our electronic application or apply over the phone by calling 800-245-3333 x389.
3. 3. Fax, email, overnight or mail the application with a copy of your most recent certificate of insurance (unless you have been in training).
4. 4. Feel free to contact us if you have questions filling everything out by calling 800-245-3333 x389 or emailing theprogram@prms.com.

Forgot something? Don't worry. We will contact you if anything is needed to complete the application process and cover you.

Richard Stagnato rejoined PRMS in 2004 after almost a year as an underwriter at NCRIC. Prior to joining the company in 2000, he had been an insurance specialist for five years with the Boat U.S. insurance program. Mr. Stagnato is responsible for sales and procurement of individual new business, providing customer service, insurance counseling as well as obtaining competitive data on the medical malpractice market. He is a licensed Property and Casualty agent.

Just One Suggested New Year's Resolution – And It's Doable!

A Guest Blog by Donna Vanderpool, MBA, JD, Vice-President of Risk Management

It's the start of a new year, so I just cannot resist offering one resolution to consider for 2012. Here it is: try to document your patients' treatment records so that someone else can read the record and understand what happened in your treatment and why. The "someone else" could be another clinician; after all, remember that the primary purpose of a treatment record is for continuity of care. Or, the "someone else" could be related to litigation - a plaintiffs' attorney, an expert witness, or a jury. Plaintiffs' attorneys tend not to take cases where there is good care adequately documented (there's no such thing as a perfect record). They would rather take cases where the documentation is such that it is not clear what the psychiatrist did or why it was done, so the plaintiffs' expert is able to make up a story about what the defendant psychiatrist did and why. We know that good documentation contributes greatly not only to improving patient safety, but also minimizing professional liability exposure. In medical malpractice cases, courts will defer to the treating physician, as long as there is some basis for that deference. That basis is the treatment record created at the time the treatment occurred.

Have a wonderful 2012!

For more risk management tips and information, visit our most popular risk management resources.

Donna Vanderpool, MBA, JD - Vice President
As Vice President of Risk Management, Ms. Vanderpool is responsible for the development and implementation of PRMS's risk management services for both The Psychiatrists' Program and The Neurologists' Program. Ms. Vanderpool has developed expertise in the areas of HIPAA and forensic practice, and has consulted, written and spoken nationally on these and other healthcare law and risk management topics. She most recently wrote a chapter concerning the risks of harm to forensic experts for Robert L. Sadoff, MD's book Ethical Issues in Forensic Psychiatry: Minimizing Harm, (Feb. 2011/Wiley). Ms. Vanderpool received her undergraduate degree from James Madison University, and her MBA and JD from George Mason University. Prior to joining PRMS in 2000, Ms. Vanderpool practiced criminal defense law, taught business and legal courses as an adjunct faculty member at a community college and spent eight years managing a general surgical practice in Virginia.

Happy Holidays from PRMS!

Happy Holidays from PRMS! On behalf of everyone at PRMS, best wishes for a wonderful holiday season and for a new year full of happiness and good health. In lieu of holiday cards this year, we have made a donation to the National Alliance on Mental Illness (NAMI). We applaud and support the advocacy and dedication of NAMI to ensure access to help the millions of people affected by mental illness. We thank you for the opportunity to provide you with your medical professional liability insurance.

Happy New Year.

Time on Your Hands?

It seems that for psychiatrists, the last two weeks of December are times of either feast or famine.  Some psychiatrists say it’s very busy in their offices. They attribute this to rising stress and waning sunlight; patients wreaking havoc on the appointment book for travel, shopping, entertaining, and having kids at home; student-patients home from college checking in; last minute prescription refill requests before holiday vacations, and so forth.  Complicating everything in the northern states is the weather, which starts to become problematic. If you are one of these psychiatrists, I wish you good luck. You don’t have time to read this blog.

Other psychiatrists say that, for some of the same reasons, the last two weeks of December are the slowest times of the year.  If your practice has slowed down, put the free time to good use by thinking about the Risk Management resolutions you made a year ago and how you’ve performed on your own expectations. For example:

• Did you complete your personalized My Risk Management Plan?
• Did you read the Rx for Risk newsletter each quarter?
• Did you take advantage of the Risk Management premium credit?
• Did you call the Risk Management Consultation Service about that situation that’s been in the back of your mind for several months now? (You remember – what to do with that non-adherent patient?  Or exactly when you’re required to notify the Department of Motor Vehicles about a patient with dementia? Or the question that every doctor has at some point – how long do I have to keep my records? )

If some of these bullet-points intrigued you, and you’re insured through The Psychiatrists’ Program, now’s the time to take care of these. Log into My Program to access the above resources or contact us and we’ll be happy to help you.

Guest Blog: Be Nice, But Not Too Nice!

A Guest Blog by Donna Vanderpool, MBA, JD, Vice-President of Risk Management

When physician acquaintances find out that I make my living assisting physicians in managing their professional liability risk, they always want to know the one thing that they can do to avoid being sued for medical malpractice.

There is no panacea, of course; nothing can actually prevent all lawsuits. However, I do share my best two pieces of risk management advice – 1) deliver good clinical care, and 2) be nice, but not too nice. The first point needs no discussion – good clinical care usually results in satisfied patients and satisfied patients tend not to sue. It's the second point that I'd like to address further.

Psychiatrists can easily find themselves in a situation where agreeing to help someone, such as a patient or a colleague, unexpectedly increases their own professional liability risk. Prior to agreeing to others' seemingly reasonable requests, you should take time to evaluate your own exposure. For example –

Be careful when "helping" a patient in these situations:

• Bartering with a patient
• Prescribing large quantities of medication for other than purely clinical reasons
• Prescribing after termination of the psychiatrist-patient relationship
• Treating patients remotely
• Failing to terminate the treatment relationship for continued patient non-adherence
• Not asking for proof of a substitute decision-maker's authority
• Taking on the dual role of expert witness, in addition to being the treating psychiatrist
• Giving a deposition without notifying your insurance company prior (if you are insured with The Psychiatrist's Program® notify us)

And, be careful when "helping" a colleague in these situations:

• Prescribing for a colleague
• Agreeing not to keep records
• Renting office space for a percentage of fees collected

For more information about how a bit of self-preservation can go a long way in minimizing your professional liability risk in the examples listed above, we've written an article on the topic. Participants of The Psychiatrists' Program® can also contact your Risk Managers directly at 800-527-9181 to discuss any risk management question or concern.

Donna Vanderpool, MBA, JD - Vice President
As Vice President of Risk Management, Ms. Vanderpool is responsible for the development and implementation of PRMS's risk management services for both The Psychiatrists' Program and The Neurologists' Program. Ms. Vanderpool has developed expertise in the areas of HIPAA and forensic practice, and has consulted, written and spoken nationally on these and other healthcare law and risk management topics. She most recently wrote a chapter concerning the risks of harm to forensic experts for Robert L. Sadoff, MD's book Ethical Issues in Forensic Psychiatry: Minimizing Harm, (Feb. 2011/Wiley). Ms. Vanderpool received her undergraduate degree from James Madison University, and her MBA and JD from George Mason University. Prior to joining PRMS in 2000, Ms. Vanderpool practiced criminal defense law, taught business and legal courses as an adjunct faculty member at a community college and spent eight years managing a general surgical practice in Virginia.

Guest Blog: Why Didn't Anyone Teach This In Residency?

A Guest Blog by Rich Stagnato, PRMS Accounts Representative

Private practitioners who need to keep track of reimbursement for their services and maintain records can find that keeping track of medical malpractice policies can also be a challenge.

Some insurance companies promote claims made policies as the only or preferred option but, in reality, there are other choices available. Through The Psychiatrists' Program®, we offer a variety of options. Let's navigate them now.

An "occurrence" policy responds to claims resulting from incidents which occur during the policy period, regardless of when the actual claim is made. Coverage need not be in force at the time the claim is reported. It is only necessary that coverage was in force at the time the alleged negligence occurred. The main thing to take away is that you don't need to buy tail coverage (a tail allows you to report claims that occurred during the policy).

A "claims made" policy responds to claims/lawsuits reported during the policy that occurred after coverage starts (retroactive date). As long as the "claims made" policy is renewed, coverage will apply. If the policy is canceled by you or the insurance company, tail coverage may need to be purchased. A tail at no additional charge may be available to those who meet certain guidelines. If you plan to stay with The Psychiatrists' Program® long term, this may offer savings – sometimes significant savings. If you are currently insured with a "claims made" policy from another company, we can transfer your current coverage (retroactive date) to your new policy – there is no need to buy tail coverage. Therefore, claims you would have reported to the other company may now be reported to our program. In many cases, our rates for this retroactive coverage (also called prior acts or nose coverage) are lower than your current company's tail coverage rate. A "modified occurrence" or "claims made with prepaid tail" policy is available in some states instead of an "occurrence" policy. With these policies, you can also report claims that occurred when coverage was in force. You will not need to pay any additional premium at the time of cancellation for the tail coverage.

If you want clarification how tails and noses (oh my!) apply to you – if at all – please feel free to contact us at (800) 245-3333 x389.

Richard Stagnato rejoined PRMS in 2004 after almost a year as an underwriter at NCRIC. Prior to joining the company in 2000, he had been an insurance specialist for five years with the Boat U.S. insurance program. Mr. Stagnato is responsible for sales and procurement of individual new business, providing customer service, insurance counseling as well as obtaining competitive data on the medical malpractice market. He is a licensed Property and Casualty agent.

Buying Insurance (Oh No!)

A nationally syndicated advice column last week dealt with the issue of how to politely but decisively suppress any conversation with a talkative stranger (in a waiting room, or on a plane, etc.). One suggestion: tell the stranger that you sell insurance for a living.

Alas, we in the insurance business have heard this before.  Insurance talk is boring and confusing at best, and depressing and scary at worst.

The reality is, however, that you do need medical professional liability insurance. It doesn’t simply fall into your lap; you need to go out and buy it. Permit me to chat BRIEFLY about buying professional liability insurance to protect yourself and your practice from allegations of negligence in the practice of medicine.

• Give yourself time to look at your options. In most states, there are several insurance companies offering professional liability coverage to physicians, and it’s wise to check out at least a couple of them (of course, one of the companies should be PRMS). We suggest you give yourself enough time to apply, pay the premium, and meet any renewal or credentialing obligations you have.   We can process an application in a matter of days.
• Think about the reality of practicing psychiatry. It’s a low-risk specialty in both the frequency of suit (i.e., how often the average practitioner is sued) and severity (i.e., how large the damages are when the average practitioner is sued). Accordingly, you may find that companies that insure all specialties don’t have much experience dealing with the risks psychiatrists face, because they tend to focus their efforts on the specialists at the opposite end of the liability spectrum – obstetricians, neurosurgeons, orthopedists. For more than 25 years, PRMS has offered psychiatric-specific coverage.
• Insurance should be more than a policy that you drop-file and hope you never need to utilize. PRMS risk management services for our psychiatrists include publications, seminars, and the Risk Management Consultation Service (RMCS), all focused on psychiatry. We want to be a resource you can call on whenever you find yourself facing a new or challenging situation. For example:

  • Should I terminate treatment of a chronically non-adherent patient? How do I do it?

  • What should I consider before committing to a particular electronic health record system?
  • My patient wants me to testify on his behalf in a lawsuit against his employer – are there any risks in that?
• Buy enough insurance, but not too much. How much is enough? This may be dictated by the health insurance panels you belong to, or the hospitals where you maintain privileges. Some states make the decision for you, requiring certain minimum limits of liability coverage. How much is too much? We can help you with this decision. The reality is, most psychiatrists still feel adequately protected carrying a policy that provides $1 million coverage for any one claim, and $3 million for all claims arising under their policy. We will be happy to discuss the details with you.

One more thing – we promise not to talk about any of this should we find ourselves sitting next to you on a plane.

This blog post is the first in a series of posts about buying medical professional liability insurance.

Cyber-Psychiatry

If you haven't already taken steps to establishing a presence on the internet, you know colleagues who have. If you have children age 10 and older, they're on the internet in some fashion, whether you know it or not. So what's stopping you, as a psychiatrist, from joining the millions of your fellow humans who are maximizing the benefits of the internet?

From a risk management point of view, I applaud those of you who are moving slowly in this area. Each week, it seems, the main stream media (MSM) reports something discomforting about the lurking dangers of SM (just in the last two days, it was the flood of pornographic spam on Facebook pages). The reality is, however, that more and more people look first to the internet for information about doctors, hospitals, signs and symptoms of disease, treatment options and drug reactions. Your presence on the internet or lack thereof is something patients and potential patients will notice. (When's the last time you looked in the traditional Yellow Pages to find a plumber or a mechanic?) It's better if you manage your presence. If you have not already done so, you should consider creating a website for your practice. A non-interactive website, basically an online practice brochure, creates very little professional liability risk.

Our publication "Risks Associated with Internet Activities: A Guide for Psychiatrists" is free to our customers and can help you feel comfortable staking your claim to a piece of the internet. Even if you're already "out there," I invite you to check out this publication to test what you've done in cyberspace against our recommended best practices. As always, if you're insured through The Psychiatrists' Program, you're welcome to call our Risk Management Consultation Service (1-800-527-9181) to discuss any questions or concerns you may have about your internet activities.

Need to Call The Program? How to Reach Us Quickly and Conveniently

At PRMS, feedback is important and critical for us to serve you better. With each insurance renewal package, we include a feedback card. We regularly receive compliments from our psychiatrists on our comprehensive coverage and the knowledge and experience of our staff.

The one area where we can improve is our accessibility by phone. We know that psychiatrists are always pressed for time, and it's no surprise that they are frustrated when they have to leave a voice message and begin a round of "telephone tag." At the same time, we want to be able to communicate with you at your convenience (as much as possible), in a way that permits the full exchange of information and Q&As to ensure that the information is accurate.

I'd like to offer a couple of suggestions to reduce your frustration by letting us help you more quickly:

• Email us at TheProgram@prms.com. Your message automatically goes to several different people, in several different departments at PRMS. It will get answered. (It also goes to me.) Even if you'd like us to call you back, this is a good way to start the conversation. Tell us when it would be best for us to call you. However, do not send any patient identifying information or details of any event, claim, lawsuit, or administrative action.
• If you call and reach voice mail, leave a detailed message, including when you can most easily take a reply phone call. We will call you back or If you prefer, give us your email address and we'll send our answer to you.
• You can always email me directly – tracy@prms.com. I will make sure your message gets routed to the appropriate people within PRMS to respond to your inquiry.
• If you are seeking risk management advice, remember that you can reach the Risk Management Consultation Service (RMCS) helpline directly at 800-527-9181.

We want to get you the information you need quickly, accurately and completely. These suggestions will help us do that.

Why Settle? Part 2

In this second posting of our Why Settle? series, we will share additional situations when a psychiatrist may choose to settle a claim. Even if the jury returns a perfect verdict (i.e., you were not responsible for the injuries giving rise to the malpractice suit), the plaintiff may appeal the verdict. And the verdict might be overturned by the appellate court, requiring a retrial of the case. Even if the first level appeal upholds the verdict, there is in many states a second level of appeal. Settlements, on the other hand, are final. They can't be appealed. The case is over, and you can get on with your life.

Finally, what about the National Practitioner Data Bank? It is true that medical malpractice insurance companies have to report settlements to the Data Bank, but ask yourself this: If a Data Bank record is fatal to a doctor's ability to continue practicing medicine, would there be any obstetricians left practicing in the US? Any neurosurgeons? Any orthopedic surgeons? In reality, the entities with access to the Data Bank understand that sometimes claims are settled rather than contested to the bitter end, and they look at the facts of the case itself.

At PRMS, our goal is to help you avoid malpractice claims by giving you the tools to provide excellent patient care, but we want you to know that sometimes even when you have the right to control settlement, discretion is the better part of valor.

Read "Why Settle? Part One"

Happy Anniversary -- To Us!

November 1, 2011 marks the 25th year that PRMS has provided professional liability insurance to psychiatrists. In celebration of the day, President Martin Tracy offers a special thank you to all of the psychiatrists we have been honored to serve!

Why Settle?

Psychiatry is a low-risk specialty, ranking very low in both the frequency and severity of medical malpractice claims. Most physicians feel that talking about settling a claim is taboo but it is our commitment to be honest with our customers and though it is not our philosophy, we feel it is our obligation to discuss it.  The reality is psychiatrists do get sued, and occasionally, we may advise the doctor that he or she may want to settle the claim, rather than “fighting it to the supreme court.” While our coverage provides insureds with the right to control settlement, not the insurance company, we will share three examples of when a psychiatrist may choose to settle in part one of this two part blog.

For example, if a doctor failed to meet the standard of care and the patient suffered damages as a result, settlement should be considered. Further, even where the standard of care was met, but the damages were horrific or catastrophic, it may be better to settle the claim rather than risk a “sympathy verdict” for the plaintiff.

Civil trials are open to the public. The trial of your case can be covered by the local press and can be viewed by anyone who wishes to sit in the courtroom and listen to the proceedings. Settlements, on the other hand, are negotiated privately. Every settlement agreement contains language that the doctor settling the claim specifically does not admit liability. Most settlement agreements also contain confidentiality language, which binds both parties.  

Until you have been through an entire lawsuit, and possibly multiple appeals, you cannot truly appreciate the time it strips from your professional and private life. For example, you may be notified that trial is scheduled to begin on July 1 and last for a week, so you cancel all your patients for the week leading up to trial (to prepare with your defense counsel) and the week of trial. On June 30, you’re notified that the judge has postponed the start of trial until August 6. You would have lost a week of preparation time one way or the other, but the appointments you canceled for the supposed trial week are gone forever. Sometimes a case will see multiple postponements. Or a case will start on time, but the judge, or one of the lawyers, or one of the parties, will get sick during the trial and the case will be continued. In short, trial calendars are never carved in stone.
In the second post of this two part blog, we will share additional situations when a psychiatrist may choose to settle a claim.

Contingency Planning

A couple weeks ago, a doctor (gastroenterologist) was killed in a traffic accident on his way to work. When I see a story like this, naturally I feel bad for the doctor, his family, his friends, and his colleagues. But I also think about his patients: they have lost someone important in their lives as well. How will they hear the news? Who will take over their care? What about those who were in his waiting room at the time of the accident? Will they simply be sent home by the office staff?

If you're a solo practitioner, you need to plan for the day you absolutely can't show up at the office as scheduled. It could be due to a tragedy in your own family, or a bout of chest pain that prompted you to call 911, or it could be the ultimate reason – your sudden death. Will your staff know what to do? Do you have a plan in place to effect an orderly disposition of your practice, providing the same kind of high-quality care you've provided to them? If you don't, you should.

We've written a short paper on it (Program Participants can click here to access the article, and feel free to contact our Risk Management staff with any questions or concerns.

"Maybe I Should Have Gone to Law School…"

One of the unfortunate realities of practicing child and adolescent psychiatry is the complex legal overlay that affects the practice. In particular, a C&A psychiatrist must have a good understanding of state law related to consent to treatment and release of patient information.

Any C&AP practitioner knows that the children of divorce often become "hostages" to the parents' hostility to each other. In general, the custody order will spell out both parents' rights in terms of consent and access to information, and the psychiatrist should review the legal custody documents. But is that enough?

Custody arrangements can change, sometimes for mundane reasons and at other times for very serious reasons. Just as informed consent is not an event, but a process, we recommend that psychiatrists treating children of divorced parents regularly review whether the adult they think has the right to consent on behalf of the child actually does have the right. Further, even if the custodial parent does have the sole right to consent on the child's behalf, it may not be appropriate to leave the non-custodial parent out of the equation. After all, it is somewhat unusual for one divorced parent to have sole custody; the child will likely be spending time with the non-custodial parent on weekends, during the holidays, or during school vacations. It is essential that the non-custodial parent understand what medications the child is taking, what side effects can be expected, and how the parent with temporary custody should react if/when side effects become manifest. You don't want to become yet another hostage of divorced parents. If you're insured through The Psychiatrists' Program, PRMS can provide you with some guidance on how to be sure you're getting consent from the appropriate parent or guardian for a child. Contact our Risk Management Consultation Service.

Self-Audit: How Would Your Records Hold Up in Court?

OCTOBER 2011:
Try this as a way of assessing the adequacy of your own patient records. Pull an "inactive" record from your files (i.e., someone you haven't seen in 3 years or more). Look through it.

• Do your notes bring to mind the patient? Do you understand what you were doing with that patient, in terms of general medical history, your diagnosis, your treatment plan at the time, and the course of the treatment?
• Are there any parts of the record you cannot understand, either due to illegible handwriting or unexplained drastic changes in your treatment?
• Are there any records of phone calls?

Of course, don't change anything in the record. Put it back in the file, just the way you found it. But ask yourself, if I received a letter from a lawyer or from the state licensure board today about this patient, would I have any idea what was going on with this patient three years ago?

Keep in mind that rarely does a patient sue immediately. In malpractice litigation or in defending your license, you are often testifying to events that transpired years before. Will your records help you, or leave you clueless?

Back to School, and Back to Risk Management Basics

This is the first of a series of blogs by PRMS CEO and President Martin G. Tracy addressing important topics and trends in psychiatric risk management.

SEPTEMBER 2011:
You know it's here – the ads for school supplies are relentless, and states and municipalities loudly tout their "tax holidays" for school-related items. But what does this have to do with the practice of psychiatry?

Those of you who treat children and adolescents may feel the greatest impact. As your patients move from elementary school to middle and high school, the complexity of their schedules increases geometrically. You and your office staff are no doubt getting more requests to juggle appointments to accommodate school and extra-curricular activities.

There's a risk management point here. Constantly juggling schedules can increase the risk that important follow-ups are delayed or missed entirely, with adverse consequences for your ability to evaluate their progress, monitor their medications and renew prescriptions timely.

Another risk management challenge is presented by patients who are making the biggest move of their young lives – heading off to college. I have heard more than one psychiatrist say that this can be difficult not just for the student and his or her family, but for the student's psychiatrist as well.

We have an excellent white paper on this topic, available under Risk Management articles on the My Program section of the website. Entitled "Treating College Students: Understanding the Risks," this paper is a good refresher on what you already know about the mental health issues facing college students.

It goes further than that, however, focusing on the challenges you face if you continue to treat patients who will now be spending most of their time far from home. Please take the time to review the material, especially if this is the first time you've had a patient "graduate" from high school into college.

Also consider carefully the points we raise about the risk of inadvertently practicing without a license, if you have patients attending college in other states or countries.

As always, members of The Psychiatrists' Program have free access to our Risk Management Consultation Service (RCMS). If you have questions about a particular situation in your practice, let us help you think it through.

For over a quarter of a century, PRMS, manager of The Psychiatrists' Program, has provided innovative ways to protect physicians, improve patient care and provide high-quality insurance and risk management services. Our professionally educated staff of seasoned risk managers, claim examiners, and underwriters is available to service you throughout your career.

We designed The Psychiatrist's Program specifically for psychiatrists and the risk they face.

 

About the Author

Martin G. Tracy, JD, ARM
PRMS President and CEO

Martin Tracy has been leading PRMS since July 1998, when he took on the role of President and CEO. The company is nationally recognized today for its expertise in the specialized field of professional liability insurance for behavioral healthcare professionals.

Mr. Tracy speaks nationally on insurance and risk management issues in behavioral healthcare. He is a published author and contributor to several leading national publications, writing on topics including strategies for risk retention groups/purchasing groups, examining and analyzing malpractice coverage for psychiatrists and psychologists, identifying exposures raised by the changing practice nature and environment of today's behavioral healthcare professional. Through active membership in organizations such as the American Health Lawyers Association, Professional Liability Underwriting Society, Risk and Insurance Management Society, and the Academy of Organizational and Occupational Psychiatry, he stays on top of emerging trends and issues that impact the company and the market it serves. Mr. Tracy is a member of the DC Bar.