• Medical Malpractice Insurance and Liability in the Age of the ACA

    Affordable Malpractice Insurance





    An ongoing question on the minds of medical malpractice insurance professionals is what is the impact of the Affordable Care Act on the medical liability exposure to physicians?  A decade ago, we cautioned physicians who were purchasing their malpractice insurance through hospital sponsored programs that the interests of the hospital, and the interests of the physician, are very different, when it comes to defending both in a medical malpractice claim.  It was commonly held that physicians are more aggressively defended when they have representation independent of the hospital.  To speak more plainly, in a joint defense scenario when the hospital and the physician are covered by the same insurance company (or RRG or Captive), hospital counsel will pressure the insurance company to protect the hospital at the expense of the physician.  Typically, the hospital  counsel will want to settle as soon as, for as little as, possible.  Physicians, on the other hand, want to fight every case aggressively, to protect their reputations.  With  the increase in hospital-employed physicians, how will these divergent interests shake out? Presently there is no real data available to review and come to any conclusion. Risk Managers are focusing on the changing liability landscape presented by the ACA. Hospitals now have a continuum of vicarious liability issues including employer liability, greater duty to train on policy and procedures, and a renewed emphasis on open communication between employed physicians, ancillary staff and hospital administration.  Prior to widespread employment, physicians did not need to be concerned with policing other physicians and hospital staff. As employees of the hospital, they will have the same interests at stake as the hospital.  There will need to be an organization-wide commitment to Risk Management  and Patient Safety Initiatives. So…can the ACA reduce liability exposure?  Maybe.  The ACA emphasis on quality of care, coordination of care,  improved outcomes, prevention of hospital re-admissions, all of these,  if implemented correctly, can reduce liability over the long-run.  On the other hand, plaintiff attorneys will be ready to exploit any deficienceis in comppliance with the ACA to further their medical malpractice allegations.