Medicine is a science, but it’s never exact. Even with the best intentions, you might misdiagnose a patient, perform a procedure incorrectly or recommend an ineffective treatment. Textbook care can still lead to patient claims that your services caused bodily harm, property damage or mental anguish.
Medical malpractice claims usually seek financial awards for patients or survivors to cover medical bills, lost wages or other expenses. Medical malpractice insurance is professional liability insurance for doctors and other medical professionals. It can be expensive, but it’s your best protection against financial disaster.
Malpractice claims are based on the premise that the patient’s injury was unintentional. According to the American Board of Professional Liability Attorneys, a malpractice claim must prove the following:
- The standard of care was not followed.
- The injury was caused by provider negligence.
- The injury resulted in significant damages.
Examples of malpractice include:
- Inaccurate or incomplete collection or recording of medical history
- Misdiagnoses
- Failure to test for or identify an illness or injury
- Lab result errors
- Surgical mistakes
- Prescriptions or anesthesia errors
- Poor follow-up care
In contrast, medical battery is when a doctor or medical provider intentionally touches or treats a patient without consent in a way that is harmful or offensive. Medical battery claims must prove intent, and these cases are handled in criminal courts. They are separate from medical malpractice and are usually not insured under medical malpractice policies.
Other common medical liability exclusions are theft, misrepresentations, fraud, practicing while under the influence of drugs and/or alcohol, and falsifications of medical information or credentials.
Diagnose your risk
Though your state might not require medical malpractice insurance, it is crucial. Even one claim can be financially ruinous.
A 2022 American Medical Association review of medical claims revealed nearly one-third of U.S. doctors have been sued at least once for malpractice. Even though most of these civil lawsuits are dropped or end with no findings of physician negligence or error, there can still be significant costs associated with legal representation and other services.
Your risk of malpractice depends on your specialty and the location of your practice. According to a 2023 Medscape report, surgeons have the highest frequency of malpractice claims, followed closely by obstetricians/gynecologists and orthopaedists.
The report also ranked the 10 states with the highest rates of malpractice claims, from highest frequency to lowest:
- Louisiana
- Indiana
- Kentucky
- New Mexico
- Pennsylvania
- New York
- Oregon
- Missouri
- South Carolina
- Tennessee
Getting the right coverage
You can obtain professional liability insurance in two forms:
- As an individual or group policy purchased directly from a traditional private insurance professional or through a medical risk retention group
- As part of an employer-provided policy, such as when a hospital provides protection for its own medical team
Any applicable policy should pay punitive, compensatory and medical damages if you are found liable.
Recognize that even when you are absolved of any wrongdoing, a malpractice claim can still involve considerable expenses. The complexity of most cases typically requires substantial investigation. You can lose income while working on case research or during court appearances. You may also need professional help restoring your medical reputation.
A comprehensive malpractice policy covers legal fees, court costs and expenses related to arbitration or settlement. It will also cover related lost wages while you’re away from your practice, and many policies will pay for reputation repair. Lawsuits can drag on for years, so this kind of financial protection is particularly important.
When choosing coverage, recognize that malpractice claims don’t always surface at the time of treatment. Each state has its own statute of limitations that defines how long a person has to file a claim. The clock usually begins at the time of the alleged injury and, depending on the state, typically remains open for one to four years. However, states have the option to extend these windows. And in most states, there’s a longer time for cases to be filed when a claim involves a child, often extending until they are 18 or older.
Because claims can be filed years after treatment, you should carefully consider the two types of malpractice policies:
- Occurrence — This coverage protects you if it was in effect when the treatment was provided. You remain protected even if the policy lapsed by the time the lawsuit was filed.
- Claims-made — This type of policy covers you only if was in effect at the time you provided the treatment (or during your retroactive time allowance) and the time the lawsuit was filed.
As a buffer, some claims-made policies also offer extended coverage for a predetermined period after the policy lapses. This “tail coverage” provides important protection when you are moving coverage to a new insurance company, changing employers or retiring.
You may need a personal policy also
Most group practices and hospitals provide their physicians with medical malpractice insurance. However, you shouldn’t assume this employer-provided benefit gives you adequate protection.
Review the details of your existing malpractice insurance with your own independent insurance professional to confirm you have the right coverage. Consider your medical specialty, the procedures you perform, your practice responsibilities, your family assets and your long-term financial goals.
Also be aware that most liability policies provided by employers only offer claims-made coverage. That means you’re covered only if you’re still with the same employer at the time the lawsuit is filed.
As a best practice, you should meet with your insurance professional periodically to review your medical malpractice coverage. This is especially important whenever there is a change in your career or personal obligations. When you meet, ask about other liabilities doctors face, particularly if you are a partner in a medical practice. As examples, these can include cyber liability and risks related to patient privacy and the Health Insurance Portability and Accountability Act.
Medical malpractice insurance can protect your assets and those of your employer. It can also financially assist patients you have injured. Call us today to find the right coverage for your medical practice.
