DISCLOSURE VOIDS INSURANCE?
December 1, 2011Doug Wojcieszak, Founder Contact phone/e-mail address: 618-559-8168; firstname.lastname@example.org
DISCLOSING ERRORS VOIDS INSURANCE COVERAGE? There are many "fear factors" in disclosure for doctors and healthcare professionals, including "Will my liability insurance carrier deny my claim or cancel my coverage if I discuss a mistake or even talk with the patient or family post-event?"
The "cooperation clause" is what we're talking about, and I've heard many people say concerns about losing coverage are an urban legend, while some defense lawyers still wag their fingers and tell people to be very, very, very, very careful. Enter a recently released paper on the subject by Professor John Banja of Emory University entitled "Does Medical Error Disclosure Violate the Medical Malpractice Insurance Cooperation Clause? Here is the link for the article: http://www.ahrq.gov/downloads/pub/advances/vol3/Banja.pdf
It's a very interesting paper, and in short, Professor Banja says he can't find one case where a doctor disclosing an error has led to a claim being denied or coverage being cancelled. He wrote there are cases where claims have been denied, but these are instances where, for example, the insured literally didn't call to report the claim or sabotaged their case in court. Nothing about error disclosure.
Banja also opines that given the ethical standards supporting disclosure and the growing disclosure movement, he has serious doubts any court would entertain a motion by an insurer to deny coverage to a physician who did the right thing and admitted a mistake. Moreover, Banja writes that given the growing wealth of information showing disclosure saves money, that insurers who stick with deny and defend are not being financially wise.
Finally, Banja cites a case - Senesac v. Associates in Obstetrics and Gynecology - in which the plaintiff suffered a serious event and claimed the physician admitted a mistake. However - and this is interesting and important - the court ruled that a physician admitting a mistake does not prove negligence! Very interesting!
So, where does this leave us? No question, this is an important paper that will hopefully put to bed one of the fear factor docs (and hospital executives) have about disclosure.
Going forward, physicians and executives need to engage their insurers on the issue of disclosure. Docs and others need to ask questions and push in some cases. Too many insurers do not provide clear information on disclosure to their insureds, and many carriers offer confusing advice: "Apologize but don't admit fault!" Huh? Furthermore, many carriers are still trying to formulate their disclosure programs. Insurers need to speed up on disclosure and their physician insureds should be urging them along.
I recently gave a series of speeches on disclosure for an East Coast hospital, and prior to my speech the hospital reached out to the two predominant carriers that covered their non-employed docs. One carrier expressed support for disclosure, while the other carrier didn't even respond. No answer, no nothing. I told the docs that day who are covered by the non-responsive carrier to give the company a call and demand answers...or walk with their feet and check books to the other carrier or even consider developing an RRG or some other captive. We're playing with lives and careers here, and insurance carriers giving half-baked advice (apologize but don't admit fault!) or simply not responding is unacceptable.
Final thought: I think another take home message from this e- blast is remember our standard advice post-event: Be quick to empathize, but PAUSE before admitting fault. Saying I'm sorry this happened, we're going to investigate, and staying connected with the patient/family is the best thing you can do and won't get anyone in trouble, including the patient/family. This is why we wrote and released this week "The Little Book of Empathy." This short book - actually a booklet - can be read in 15 to 20 minutes by docs, nurses, and other front-line staff, and gives them all they need to know to empathize and stay connected with patients/family post- event without prematurely admitting fault. Click here to order your copies today: https://secureserv er.wildfire.net/sorryworks/. Individual copies of the booklet sell for $9.99, and can also be purchased in packets of five ($29.99), 10 ($49.99), 25 ($99.99) or 100 copies ($339.99). For larger orders or additional pricing information, call 618-559-8168 or e-mail email@example.com
Doug Wojcieszak, Founder Sorry Works! PO Box 531 Glen Carbon, IL 62034 618-559-8168 (direct dial)