Why You May Need Malpractice Insurance

Vol. 20 •Issue 27 • Page 5
Legally Speaking

Why You May Need Malpractice Insurance

Every now and again, people ask me: Doesn’t having my own medical malpractice insurance policy mean I am more likely to get sued?

I understand their concern. No one wants to be sued. No RTs want to defend their professional honor in court. No RTs want to do anything that would make it more likely they would get sued.

The fact is, however, there is no place a lawyer or a plaintiff can go to learn whether you are insured. Insurance companies consider their client list to be proprietary information and frequently sue people who take that information. If you call an insurance company to verify a person has some form of insurance, in most cases you’ll be met with stony silence.

Plaintiff counsels tend to sue people based on what they know at the time they file suit. They know the hospital name. They may know the names of the people involved. But in most cases, they do not (and cannot legally) run credit checks on those individuals to determine whether there are assets available in the event of a lawsuit.

As a result, if an RT is named in a lawsuit, in most cases it isn’t because there is a belief the therapist has insurance. In most cases, it is a way of giving the therapist the strongest incentive possible to place the blame on others.

Even if therapists have done nothing wrong, they still have to defend a case brought against them personally; and if the therapist is no longer employed at the hospital where the case originated, there is no reason to expect the hospital will provide an attorney for the therapist.

If the therapist is named personally and fails to answer or otherwise defend the lawsuit, the plaintiff can take a default judgment and move to collect by garnishing wages. Even if a therapist wasn’t in the room when bad things happened, it still might require thousands of dollars in legal fees to prove it. Without insurance, those fees are your personal responsibility.

There is another excellent reason to have malpractice coverage, however, and that relates to state disciplinary actions. In most malpractice policies, there is specific coverage in the event the state comes after your credentials.

If your respiratory care board files a complaint against you, most insurers will provide a sum of money to assist you in defending those charges.

These disciplinary cases are not cheap. There is often as much if not more work in a case involving the defense of a license as there is in the defense of a medical malpractice case. Lawyers do discovery, take depositions and travel to collect statements and evidence in their case.

A two-hour deposition can cost as much as $600. At 44 cents per mile, a 200-mile round trip can cost $88. Add in meals and lodging and the costs can quickly mount. When it takes almost 10 hours to prepare discovery and do a motion to dismiss the cost of defending your license, the legal costs could quickly wipe out your savings. (Remember, lawyer rates vary from $120 to $250 an hour.) An insurance policy makes most of this expense unnecessary.

One additional good reason for purchasing medical malpractice insurance is the insurer will help you find the right lawyer to represent you in a given situation. A discipline case requires a different kind of attorney than does a medical negligence case. In most cases, you don’t really know who is good at handling these types of cases. And getting the wrong lawyer could be more costly than not having one.

Don’t purchase malpractice insurance blindly. Look at the costs of the policies and what benefits are provided. Analyze the various strengths and weaknesses in the coverage. Some policies protect you for anything that happens in a policy year no matter when a lawsuit is brought. So, for example, if you provided NICU care in 2000 and get sued in 2008, the policy in force in 2000 provides coverage. Some cover suits filed only when the policy is in force and require you to buy “tail coverage” if a suit is filed after the policy is terminated.

Depending on your age and the kind of therapy you practice, either of the policies may be good; one might not be better than the other. Nonetheless, it is a good idea to know the difference going in.

A.L. DeWitt is affiliated with the law firm of Bartimus, Frickleton, Robertson and Obetz, Jefferson City, Mo. This column is not a substitute for the advice of qualified legal counsel.

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