Seasoned orthopaedic surgeons provide highly practical and valuable advice
Clinicians practice within a litigious environment, the nature of which varies depending on practice location and subspecialty. Residents who are transitioning from training into practice, therefore, need to be familiar with the medical liability system and how variation in tort protection laws among states may inform their choice of future practice location. Limiting liability exposure enables orthopaedic practices to remain financially viable and thus able to continue providing high-quality musculoskeletal care.
Residents also need to understand the implications of being named in a malpractice suit while in training, as they proceed through the licensing and credentialing process at completion of their residency. Recently, I spoke with Kimberly Templeton, MD, past-president of the Kansas Board of Healing Arts and director of the University of Kansas Medical Center Orthopaedic Surgery Residency Program, and Michael R. Marks, MD, MBA, and Robert Slater, MD, who serve on the AAOS Medical Liability Committee, for their advice on the subject.
Dr. Morris: How are residents protected from malpractice litigation while in training?
Dr. Templeton: Although residents are viewed as students by the Accreditation Council for Graduate Medical Education, this does not provide them with any protection for medical liability. When liability suits are filed, typically all providing physicians, and potentially other healthcare providers, are named. However, during discovery, if it is determined that the resident had little, if any, input regarding treatment decision-making or had little independent involvement in the provision of care, within or outside of the operating room, the resident is frequently dismissed from the case. Insurance coverage is provided by the academic institution for residents in training.
Dr. Morris: What are some of the long- and short-term effects for residents who are named in lawsuits?
Dr. Templeton: In the short term, being named in a suit is an
extremely stressful experience. Residents should notify their program director as soon as they are aware of the suit, so that they can meet with the attorney provided by their affiliated medical school and/or academic health center to discuss the case and outline next steps. This level of stress, in addition to the demands of residency training, can be overwhelming. Residents should try to avoid the natural tendency of wanting to discuss the case with others and, in particular, they should not discuss specifics of the case. Any needed, confidential support can typically be arranged through the local graduate medical education office or the state physicians’ health program. If the resident is dropped from the suit, there should be no long-term impact. If, however, the resident remains on the suit, this will need to be noted on future applications for state licensure or hospital credentialing. This requires details of the suit, when and where it was filed, and a description of the resident’s involvement in the case. The resident should keep this information readily available. Although gathering additional information may slow the application process, it typically would not prevent the resident from gaining licensure or obtaining hospital privileges.
Dr. Morris: How does malpractice insurance protect physicians?
Dr. Marks: All insurance is purchased to economically protect individuals from potential financial catastrophe. (See “Insurer Provides Interesting Perspective on Tort Reform in the Medical Malpractice Arena,” AAOS Now, December 2017, for potential types of policies physicians should consider). Medical liability (malpractice) insurance protects physicians’ financial liabilities that result from losing or settling a malpractice claim.
Dr. Morris: How does a physician obtain malpractice insurance?
Dr. Marks: Medical liability insurance is obtained and written in the name of the physician. It is frequently purchased through the physician’s practice. A policy is usually purchased for the physician,, while an additional policy provides coverage of the members of the group. Physicians employed by a hospital system or by an academic institution may be provided this insurance as one of the conditions of employment.
Dr. Slater: Insurance brokers operate in ways analogous to financial advisors and can assist surgeons with obtaining the policy that works best for their individual needs. State orthopaedic societies are often well informed about reliable and trustworthy brokers working in their states. Central offices for those societies are a great place to start when seeking such references.
Dr. Morris: As residents consider future employment and state of residence, what aspects of medical liability reform should they consider?
Dr. Marks: Stability of the medical liability insurance markets is very much dependent upon each state’s laws governing caps and the way suits are filed and adjudicated. The best metric is determined by the premium for the policy. In some states, a policy that provides $1 million to cover damages from a single incident and up to $4 million in aggregate for all suits in a single year may have a premium of $30,000, and, in other states, it may cost more than $100,000.
Dr. Slater: In addition, in some regions or states, individual surgeons in solo or small group practices may be able to obtain medical malpractice insurance at discounted rates by taking advantage of specific insurance products offered to members of professional organizations. For example, members of the Western, Eastern, and Southern Orthopaedic Associations can purchase
medical malpractice insurance at much lower rates than if they purchased the insurance products on their own. It is important to make sure that the state of residence being considered does not have statutes or reforms in place or pending that preclude such “pooled risk” products.
Dr. Morris: Do you have any information on resident retention patterns in states based on their medical liability laws?
Dr. Marks: I don’t have any concrete examples, but I have heard that for many years, no residents stayed in Pennsylvania following their residency training.
Dr. Slater: In general, surgeons tend to make decisions about where to practice at the end of their formal training based on myriad factors. The most common is where the surgeon and his or her family and support network want to live. However, sometimes economic factors weigh heavily in that analysis, and the cost of medical malpractice insurance can be an important variable to consider. In California, for example, the caps on noneconomic damages have been a valuable tool that has kept insurance rates relatively stable and relatively affordable. In neighboring states, such as Nevada, there was, at one time, a significant exodus of surgeons who faced insurance premiums that were cost prohibitive. That state worked hard to change those circumstances and rein in premiums. It is important to remain vigilant to avoid repeating that tragic history.
Among other things, the AAOS Office of Government Relations (OGR) educates members of Congress and government policy makers about medical liability reform’s potential impact on orthopaedic surgeons and their ability to preserve patients’ access to care. Recent OGR efforts include support for the Sports Medicine Licensure Clarity Act, which allows sports medicine physicians to travel with their teams and provide medical care at sporting events outside the state where the physician maintains a license to practice medicine. The bill ensures that medical liability claims that arise from out-of-state medical treatment provided by the surgeon while covering a sports team will be covered by the medical malpractice insurance carrier in their state of primary licensure. The Sports Medicine Licensure Clarity Act passed the House of presentatives by voice vote.
Malpractice laws vary among states. Some states provide greater protection to physicians than others, especially with respect to caps on noneconomic damages. To legislate tort reform and provide a standardized, national approach to medical liability, AAOS has assisted in drafting the Protecting Access to Care Act (PACA), H.R. 1215. The bill aims to protect patients by allowing full and unlimited recovery of economic damages in cases of medical negligence and will ensure speedier resolution to litigation by enacting a statute of limitation for lawsuit filing. Attorney fees are limited, so that awards go to patients and their families instead of personal injury lawyers. The cap of $250,000 on noneconomic damages will help to keep orthopaedic surgeons in practice in areas of high liability risk, protecting patient access to care. The Congressional Budget Office estimates that comprehensive medical liability reforms included in PACA will lead to a cost savings of $55 billion over the 10-year period 2017–2026 for federal healthcare programs such as Medicare and Medicaid and reduce the national deficit by almost $62 billion. As of April 2018, PACA has passed the House of Representatives and is under deliberation in the Senate.
Finally, AAOS is also working to build support for the Good Samaritan Health Professionals Act. On Feb. 14, 2018, the House Energy and Commerce Committee approved the legislation, which helps protect healthcare professionals who volunteer their services when a major emergency arises. Efforts to pass this legislation through the House and Senate are ongoing.
To learn more about AAOS advocacy efforts related to medical liability reform, visit www.aaos.org/Advocacy/MLR/.
Brandon L. Morris, MD, a PGY5 resident at the University of Kansas Medical Center in Kansas City, Kan., is also a delegate member of the AAOS Resident Assembly and a member of the AAOS Resident Assembly Health Policy Committee.