EMS Malpractice Insurance

Options to limit liability for EMS medical directors


 
 

Howard Rodenberg, MD, MPH, Dip(FM) | | Thursday, December 13, 2007


There is no question that the availability of medical malpractice insurance has reached crisis proportions. One needs only look at the daily paper to see the results of excessive litigation and soaring premiums. The single trauma center in the state of Nevada temporarily closed. Physicians in high-risk specialties, such as obstetrics, are leaving states in droves or restricting their practice to serve only "low-risk" patients. Here in Florida, we reportedly have seen the highest rate of increase in malpractice premiums anywhere in the nation. A local hospital in the Orlando area lost four of it's five on-call surgeons when its group malpractice policy shot up from $60,000 to more than a half million dollars in one year.

As a public service, EMS sometimes feels immune to these tsunamis. Unfortunately, this is not the case. A friend of mine in a neighboring county saw his malpractice premium for EMS activities jump from $5,000 last year to $43,000 this year. This increase was in the absence of any suits even being filed. Here in Volusia County, in 2000 2001 the cost of independent EMS malpractice insurance was roughly $16,000. I'm told that this year, it's up to $30,000, nearly half the total contract value. Given that virtually all EMS medical direction contracts include a call for liability coverage and that (to my knowledge) there is only one carrier within Florida that will write EMS-specific polices, EMS physicians are over the proverbial barrel.

It's not realistic to blame any one party for the malpractice crisis (although in print, everyone is happy to do so). In truth, we're all at fault. Medicine's celebration of its own triumphs gave the public unrealistic expectations of the care available. We've gone from doing a poor job of policing ourselves to having financial incentives to turn against each other. Trial lawyers "chum" for cases, noting that every encounter with medical care is a lottery ticket waiting to be scratched. The sheer volume of suits and the unpredictability of the trial make the process of litigation so expensive that settlement, regardless of the quality of care, is the rule of the day. Insurance companies, motivated by profit, raise rates to inflate corporate value. They encourage settlement to avoid potential loss, which in turn drives further litigation. Society itself has adopted a victim mentality. Accidents don't happen and every outcome is necessarily positive; when adverse things happen, it must be someone's fault. State and federal legislators failed to see a problem in the offing and fail to show the political courage to take action (I might add that the skyrocketing cost and decreasing benefits of consumer health insurance shares a similar multifactorial etiology).

The effects of rising malpractice rates can have a chilling effect on the development of the EMS community. Physicians involved in EMS are generally enthusiastic and involved individuals who want to spend time improving their systems. But, like everything, time comes with a cost. If the actual (malpractice premiums) and potential costs (malpractice risk) of working with EMS exceed what the physician can bring in from other activities, is it any wonder he or she might opt out? Several well-respected EMS physicians in Florida have already made that choice. Like everyone else, they have families to feed, homes to buy and bills to pay. As the best and brightest minds in EMS are also the ones most aware of the risk, they are the ones the system will lose. EMS faces the risk of moving backward to a more authoritarian, less progressive medical leadership.

Practical concerns

Granted, this sounds theoretical to people "on the ground." But here's what it means to you in real life. There are always cheaper bodies to fill a void. Physicians with less background, interest and commitment to EMS may be drawn into leadership positions. No matter what you think of your current medical director, it could always be worse. A doctor with less understanding and vision will still exercise the same powers as a progressive one. Will quality management be scientifically based or will it be a set of random actions? What is the role of research and education? How about protocol decisions, such as thrombolytics in the field or rapid sequence intubation? My sense is that less involved means less informed and answers to such questions will be the "no" of ignorance.

Most EMS systems will recognize when medical direction is being regressive. The system may even opt to sever the contract with this physician. But word gets around in the medical community, and what physician wants to devote time to an EMS organizations where he's not appreciated and can be fired on a whim? (Have you ever noticed that when you ask the person who was fired why they left, it was never for a reason?) The only people who now want the job are those with less knowledge of the system, and you enter a spiral that takes you further and further from the future of prehospital care.

Are there any solutions? Certainly tort reform and changes to trial court systems will be invaluable, but these face still political opposition. I do think, however, that there are some things EMS agencies (and their sponsoring entities) can do to alleviate this burden and retain qualified physicians.

Retention steps

The first way to do this is to place medical directors under agency liability policies. In the corporate world, that encompasses corporate liability; in the public world, it's the concept of "sovereign immunity," in which damages are limited by statute. Many EMS medical directors work as contractors to public agencies and, as such, may not be able to be insured by the public entity itself. A shift to employee status is often required for the physician to fall under the policy. This has it's own concerns: EMS physicians often can't punch a 40-hour time clock, and other public employees may look askance at the salary differential between themselves and an "underling" physician (you'll never make more than the county manager). But it is the easiest way to eliminate the burden on malpractice premiums on the physician and to limit his damages to those of the public entity.

There's another catch to the whole issue of malpractice coverage for EMS. Companies who don't understand medical direction write most policies. While we provide a small amount of direct, online care, most of our functions are administrative. Some worry that current polices cover clinical, but not administrative acts. Placing the EMS physician under the same sovereign immunity as public employees for administrative acts might actually serve to extend the coverage, placing even less risk on the physician for policies, protocols and disciplinary actions. The absence of threat can only improve the decision-making process.

Another relatively easy change would be for public entities to rewrite contracts that specify certain liability carriage. In many cases, the coverage required by the medical director for EMS activities exceeds the liability carried by the employer, making the physician an especially lucrative target for suit-happy attorneys. For instance, one county in Florida has sovereign immunity limits of $100,000. However, they require their EMS medical director to carry liability limits of up to $1 million per incident ($3 million cumulative) per year. This often exceeds by far any particular legal requirement to do so. Florida law does not require any malpractice insurance be carried, but only that a licensed physician without hospital privileges agree to satisfy any adverse judgments up to $100,000 within 60 days of such judgment. While physicians may be liable for judgments over and above the amount of their insurance if policy limits fall, the ways in which assets may be protected limit the desire of plaintiff's attorneys to attack this source. To paraphrase Willie Sutton, it's not hard to figure out where the money the easy money really is.

Expectations

Personally, I think the saddest part of the entire medical malpractice crisis is that being sued is simply considered a part of doing business. Medicine is not yet a science and still greatly an art. Poor outcomes will happen. For thousands of years, that was understood. The greatest role of the physician was not as a healer, but a counselor. Doctors gave hope when it was appropriate and comfort when there was nothing else. Cures were not expected, and the ease of suffering was the goal.

The expectations of society are different now, and so are the actions of the physician. While we've all heard of "defensive medicine," what's really of concern is not so much the over-ordering of tests and exams but what happens to patients. They find themselves shuttled between physicians for another opinion, to make sure everything was done and nothing was missed. They find themselves without a doctor because something in their socioeconomic or health status labels them as high risk. Instead of offering hope and comfort, we lower expectations with the message that the patient is already a lost cause. These actions and attitudes permeate not only inpatient care, but are indirectly reflected in the way we structure EMS protocols, training and systems.

I recently read that for an ED physician, the rate of being sued is 0.3 per physician per year. That means that once every three years, an ED doctor will be sued. It's hard to find any other profession that accepts that rate of risk. The emotional cost of a lawsuit, even one settled out of court or won in trial, is staggering. Physicians practice scared. They procrastinate, persevere and fail to make decisions. Lawsuits come home as well, causing friction within families and relationship.

Who can blame a doctor for doing everything possible to protect themselves in an environment where everyone is an adversary until proven otherwise? And who can blame them for getting out when they can? It's incumbent upon the EMS community to work toward limiting medical director liability to keep them in the fold.


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