Untangling Interwoven Liabilities

Medical Groups, by their very nature, intertwine two critical but seemingly incompatible functions: providing medical care and maintaining economic feasibility.   This dual function, coupled with the ever-evolving health care system, creates a host of new liabilities for all medical groups.   To achieve this two-tiered objective, these organizations are a unique combination of medical professional services and corporate management.   Mirroring this entangled structure and function, medical groups face a unique weave of Directors & Officers and Errors & Omissions liability exposures.

The Doctors Insurance Agency will coordinate site visits or phone consultations with our managed care legal expert,   Jayme Taormina, J.D.   Our goal is to avoid any unnecessary managed care liability exposure and we try hard to protect our policyholders from some of the pitfalls of managed care products.

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Risk Management

Our Risk Management Program is accredited by the Accreditation Council for Continuing Medical Education.   Guided by Joan Bristow at The Doctors Company's headquarters, we can arrange for regular site visits by our Risk Management Team.   A Risk Management specialist can be assigned to your new group.

The way to prevent the double digit premium increases that were rampant in the early to mid-1970s is to commit the company to the study and management of claims while concurrently working on legislation and political action that safeguards the physician's interests and assists in stabilizing skyrocketing malpractice premiums.

The core of Risk Management education is establishing a shared understanding of how claims are caused and prevented.   Our excellent Risk Management Team, including field managers in all U.S. time zones, presents specialty and regionally specific services to our policyholders.   Teaming with the Claims and Underwriting staffs, Risk Management investigates the how's and whys of actual claims, then translates findings into practical, preventative guidelines.

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Physician Advocacy Communication/Education

The Doctors Company is committed to strong partnerships with policyholders by stressing communication as a means of building mutual understanding and confidence.   The better we understand your needs and the more you know about our services, the less vulnerable you ultimately will be to experiencing claims.

Sharing knowledge and information is The Doctors Company's commitment to ongoing education for policyholders.   This is reflected in the quality of our loss prevention materials and presentations.   One component of our educational focus is identifying new claims exposures and alerting policyholders.   A current example is TDC's education pertaining to liability risks associated with managed care, specifically with health maintenance, preferred provider, and exclusive provider organizations.

In over 20 years of committing ourselves we have developed highly skilled and experienced Claims and Risk Management Departments.   We are proud that we are a competitively priced solution that supports each policyholder with intelligent, experienced and committed insurance and medical professionals.

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Notification of an Incident or a Claim for TDC Insureds

It is essential that you notify your regional Claims office immediately if any incident occurs that may lead to action against you.

The more familiar you are with the following information and guidelines, the better able we will be to provide you with expert claims handling.

What Should You Report to Your Regional Claims Office of The Doctors Company?

• Demand for money
• Verbal or written threat of legal action
• Formal paper naming you as a defendant or witness
• Attorney’s letter of intent or 90-day notice
• Request for arbitration
• Request for deposition or interview
• Subpoena, summons, complaint, notice of a lawsuit, or small claims court notice
• Disciplinary proceeding or hearing (MediGuard claim)

What Types of Incidents Lead to Claims and
Should Be Reported to Your Regional Office?

Report any incident related to diagnosis or treatment that could be construed as a contributory factor to:

• Death
• Diminished life expectancy
• Loss of an extremity
• Injury to or impairment of a body organ
• Loss or impairment of any of the five senses
• Severe disfigurement
• Verbal or written threats
• Harassment by patient or family

How to Report an Incident to The Doctors Company:

• To report a claim to your Regional Claims Office, please submit a First Report of New Incident or Claim or a MediGuard Claim Form (to report Medicare/Medicaid, licensing, and credentialing reviews and actions).
• Reports may be faxed or mailed.
• Be ready to relate the facts of the event.
• Provide all relevant documents (including any demand, notice of intent to sue, complaint, or other document you receive that relates to the incident or claim).
• You may also wish to discuss the incident with your regional Claims office or risk manager, but this would NOT constitute notice to the company.

Additional Recommendations to Ensure Defensibility:

• Do not add to, delete from, or otherwise alter a medical record.
• Place the medical record in a safe place.
• After making a report to us, keep copies of your correspondence in a safe place—not in the patient’s chart—for future consultation.
• Always require the patient’s or the patient’s representative’s signature to release a copy of the medical record or any information within it.
• Do not discuss the event with anyone other than your claims representative or defense attorney.
• Do not make contact with anyone associated with the case except your claims representative or defense attorney.

When we receive your written report, we will send you an acknowledgment and will carefully review your report. If no action is required in the case of an incident, we will inform you that the report and medical records have been filed for reference in the event that a claim should develop. Depending on the facts and circumstances of the event, a claims representative may need more information from you. In the case of a lawsuit or a demand for arbitration, we will send you an acknowledgment along with specific instructions for future handling. Call your regional Claims office or speak with your claims representative at any time to ask questions or to receive an update on your case.

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Loss of Chance Doctrine

From President Bush on down, skeptics of the current medical-malpractice system persist in pressing their position that the associated costs -- namely, damage awards for plaintiff patients and correspondingly high malpractice insurance premiums for defendant doctors -- need to be capped.

Less obvious, though no less troubling for defense attorneys in med-mal cases, is the relatively recent emergence of the "loss of chance" concept and its increasingly frequent use by plaintiffs' attorneys seeking damages against doctors for failure to minister to the patient in a timely manner.

The doctrine is being raised in cases in which the plaintiff had a chance of survival, or a chance for a better outcome, of 50 percent or less prior to the alleged negligence. Loss of chance has been claimed in a variety of contexts, including failure to summon emergency help, promptly admit or transfer a patient to a hospital, perform surgery or prescribe cancer-combating treatment.

Defense attorneys say the doctrine most often surfaces in cases claiming failure to diagnose -- with the illness in question usually being cancer.

Just as the medical-malpractice debate has found its way into presidential press conferences of late, with Bush reiterating his call for "tort reform" at a White House meeting with the media last month, so has loss of chance become a public policy issue --for the courts and for state legislatures.

In Massachusetts, the Supreme Judicial Court last spoke on the issue in 1993, in the case of Bradford v. Bay State Medical Center, which left unanswered the question of whether loss of chance will be recognized in this state but gave a hint of what might happen the next time the court is asked to decide on the matter.

"[T]here is reason to question a rule of law that would totally exonerate a negligent physician from tort liability when the patient had a fair, but less than even, chance of survival if the physician had not been negligent," the court said then.

That statement was not lost on Boston plaintiffs' attorney Patrick T. Jones, currently serving as president of the Massachusetts Academy of Trial Attorneys, who expects that, when faced with the issue again, "the SJC ... will clarify along the lines of Bradford. "

Reportedly, two medical-malpractice cases that involved loss of chance claims are being prepared for consideration by the Appeals Court by the Boston defense firm of Morrison Mahoney.

At the lawmaking level, the Legislature has yet to consider any bills dealing with loss of chance, but if the state's appellate courts address the issue more directly, legislation might follow -- as it has in several other states whose high courts have recognized the concept.

"Obviously, such legislation should solidify the right of recovery for loss of substantial chance of survival," says Jones, who explains why plaintiffs' attorneys would support such a bill.

"Doctors always defend on a standard of care," he says, "by saying there is no real standard, that [medicine] is an inexact science, if not an art. But then, when they get to this area of causation, all of a sudden they're very exact about it. They point to statistics and say, 'You only had a chance of 49 percent to survive. '"

If the sharply divided positions of the defense and plaintiffs' bars are any indication, the debate over loss of chance could well generate plenty of heat -- in the General Court and at the Supreme Judicial Court. Whether it will shed light on a possible resolution of the controversy is yet to be determined.

'Great deal of uncertainty'

Boston defense attorney Tory A. Weigand, a partner at Morrison Mahoney, has shown a deep and abiding interest in loss of chance cases, having represented doctors and physician practice groups named in them and having authored lengthy treatises on the subject for Massachusetts Law Review and Defense Counsel Journal.

He told Lawyers Weekly he is unequivocal in his opposition to the use of the doctrine.

"Loss of chance has not been expressly recognized in Massachusetts and should not be," he says. To do so, he adds, "would expand liability for physicians on a theory that is not applicable to any other professional. "

To drive home his point to his colleagues at the bar, Weigand notes that lawyers, too, could be subject to loss of chance claims by disgruntled clients.

"Say a lawyer doesn't handle a case properly," he says, by way of example. "The client could say, 'If you had only done X, Y and Z, I would have had a chance at a better result. '"

Boston defense attorney Nancy L. Watson, also speaking in no uncertain terms, opposes the use of the loss of chance theory, about which she says, "There is a great deal of uncertainty. "

"From the defense-bar point of view, there is no clear guidance from the appellate court as to how this theory should be recognized," she says.

Meanwhile, trial courts "in many cases are allowing the jury to consider [the theory]," Watson says. "There are no clear jury instructions on this, on how a jury should deal with damages. There is the so-called model charge in medical-malpractice cases, and judges will modify it somewhat to fit the particular case, but it says nothing about loss of chance. "

Jones notes that he handled a 2003 med-mal case in which it was alleged that non-Hodgkin's lymphoma in the throat of a 29-year-old man was not diagnosed at the appropriate time; the jury returned a $2 million verdict for the estate of the young man.

"One of the first things [the doctors] did was to delay treatment; they failed to do a diagnostic test sooner," Jones recalls. "The jury in Middlesex bought this. "

Indeed, the issue of damages in medical-malpractice cases generally appears to be a hot-button one for opponents of the use of loss of chance in such cases. According to Weigand, some courts allow full damages for plaintiffs while others provide "proportional" damages; he finds fault with both approaches.

"The defense bar believes plaintiffs should never get full damages in a loss of chance case," he says, "because, since the plaintiff had a less-than-even chance of survival, there is no basis for awarding the patient full damages on the basis of a loss of chance. "

If a proportional damage approach is taken, with the jury attempting to calculate the worth of the deceased person's life and awarding damages based on a percentage equal to the loss of chance, "the standard burden of proof is altered," Weigand says.

"For instance, an alleged 25 percent loss of chance of a better outcome is both a mere possibility of harm and specific proof that, more likely than not, the defendant did not cause the plaintiff's injury. The physician is thus forced ... to establish with 100 percent certainty that the negligence caused no harm. "

No matter which approach is taken, Weigand says, "loss of chance not only lowers the burden of proof as to causation, but, by allowing recovery in those instances where the lost chance is 50 percent or less, it effectively shifts the burden regarding causation to the defendant physician. "

'Left to another day'

Weigand, Watson and others in the defense bar are monitoring signals from the courts and developments unfolding in the state legislatures as they relate to loss of chance.

Lawyers Weekly earlier this month asked Massachusetts Defense Lawyers Association President Michael P. Giunta for his 350-member organization's position on loss of chance.

The association, "as a group, does not express a stance or an official position on a political or legislative level," says Giunta, a Boston defense attorney, "but from a personal or practical standpoint, it seems to me that there may be legitimate claims out there for loss of chance. "

In some states, appellate judges have left to lawmakers the question of how to address loss of chance, says Weigand, who cites Vermont, Maryland and California as states in which the judicial branch has deferred to the legislative branch on recognition of loss of chance "due to significant policy considerations around the issue. " In other states, the courts have spoken, and the legislatures have reacted.

"Legislatures have, in fact, stepped in," Weigand reports. "For example, in both Michigan and South Dakota, the state legislatures abrogated loss of chance as a cause of action not long after it was recognized by the state Supreme Court. "

In the 1993 Bradford case before the SJC, the patient had died of a ruptured, infected aortic aneurysm. The plaintiff claimed that the physician should have performed emergency surgery to repair the aneurysm, giving the patient a 40 to 50 percent chance of survival.

The court recognized that, under traditional causation standards, the claim would fail because the decedent's chances of survival were "no greater than even," Weigand says. But he, like MATA's Patrick Jones, is mindful of the court having questioned in that case a rule of law that would completely exonerate a negligent physician from liability if the patient had "a fair, but less than even chance of survival" had the doctor not been negligent.

"In substance," Weigand wrote in the Summer 2002 issue of Massachusetts Law Review, "the Bradford court adopted the 'substantial chance' approach to loss of chance for purposes of offers of proof only and left to another day the issue of whether such a theory of recovery will, in fact, be recognized. The court also gave no indication as to what would constitute a 'substantial' loss of chance, whether any 'substantial' loss of chance must be found to be a 'substantial factor' in the resulting harm, or what harms are compensable. "

With no definitive word from the SJC and the Legislature seemingly silent on the issue, loss of chance looks to have a future in medical-malpractice litigation, at least in the near term. A long-term future may be less certain, defense lawyer Watson predicts, if the medical-scientific community continues to make strides in detecting diseases like cancer.

"In 15 or 20 years, loss of chance may not be an issue," she says, "because of genetic markers. "

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