What do the following three things have in common?
- You receive a letter from a patient expressing dissatisfaction with your care—although what the patient is actually requesting for resolution is unclear.
- You practice in Washington and receive a letter from an attorney requesting mediation that cites Washington Code RCW 7.70.110.
- You receive a phone call from a patient expressing dissatisfaction with care, requesting compensation for medical expenses, lost wages, and pain and suffering.
These situations all indicate a claim is being made against you, and you should contact the claims department of your medical liability insurance provider immediately.
Even if you have never been involved in a lawsuit, you probably have some concept of what a lawsuit entails. You may know that documents are filed with a court, allegations of negligence are made, and—depending on the state—the actual dollar amount being sought by the patient is stated. You may know that these documents would be served upon you or, if your organization has a registered agent, the documents would be sent to the registered agent. You probably wouldn’t hesitate to call and would rightly assume that as long as the lawsuit is covered, an attorney would be assigned to represent you. You may understand a formal process of discovery would occur, including depositions, and the case may be dismissed or settled, or would proceed to trial, where a jury would award a verdict for or against you.
What you may not realize is that pre-litigation claims can be made against you and require the same attention as a lawsuit. It is never a good idea to handle these situations on your own or to disregard any communication from a patient that may indicate a claim. Reporting these events is necessary to preserve your insurance coverage and allows your claims team to extend advice to you in “gray area” situations with patients or handle these reports as pre-litigation claims. Our claims philosophy is to be as proactive as possible, when indicated, as it can allow for the best resolution for the provider, organization, and patient while reducing publicity, stress, and inconvenience. Claims can generally be investigated and resolved in a matter of months while lawsuits may take 1½ to 2½ years (or more) to completely resolve. Appropriate attention to a claim or claim-like communication from your patients can help you avoid litigation altogether.
HOW IS A CLAIM DIFFERENT FROM LITIGATION?
The claims process mirrors the litigation process but without the formality, as there are no interrogatories, depositions, or trials. Interviews or obtaining documents supporting a patient’s claim are all performed through cooperation with the patient or their attorney. When a claim report is received, one of our experienced claims representatives will conduct a thorough investigation, including, but not limited to, discussing with you the medical care provided, handling all communications with the patient or patient’s attorney, collecting medical records, and interviewing medical consultants retained to express an opinion on the standard of care. The same elements necessary to establish negligence in a lawsuit are used:
- The medical provider’s care deviated from that of a reasonably prudent provider in a same or similar situation;
- The deviation from care caused the patient’s injury; and
- The nature of the injury.
Your claims representative will discuss the outcome of the investigation so that you can make an informed decision whether you wish to settle or to proceed in defending the claim. If the case is to be settled, the benefits can be a lower settlement as the patient and their attorney may have little to no expenses incurred. Also, there will be no public record of a lawsuit, and the parties will not endure lengthy and acrimonious litigation. However, if the investigation indicates no negligence, a denial of the claim is issued. Many times, claims are abandoned at this point as the patient or their attorney may not have an expert, or, having had a preview of the strength of our case, they might conclude that legal pursuit would be unproductive.
Claims, like lawsuits, become part of your claims history regardless of the outcome. Settlements must be reported to the National Practitioner Data Bank. A copy of the National Practitioner Data Bank report may also be sent to your State Board of Health. Generally, additional coverage is afforded to you for State Board of Health investigations following a settlement for incurred legal expenses, as attorney representation for State Board investigations is necessary. Incident reporting, where you simply receive advice or put us on notice as a precaution but the situation does not rise to the threshold of a claim, are never a part of your claims history.
Differences between patient complaints and claims can be subtle, and legalsounding letters can cause concern. Understanding what may constitute a claim and seeking assistance right away can prevent troubles in the long run. The ability to transfer the handling of a claim to your medical professional liability carrier is one of the most valuable features of your insurance coverage.
WANT TO TALK TO SOMEONE IN PERSON AT PHYSICIANS INSURANCE?
Call (800) 962-1399 and ask to speak with someone in our claims department.
WANT TO REPORT AN INCIDENT ONLINE, AT YOUR CONVENIENCE?
Visit www.phyins.com and select the secure “Report an Incident” link from the home page.