After emergency physicians (EPs) recover from the shock of finding themselves named in a lawsuit, jumpstarting a vigorous defense is probably top of mind. But what if the allegations are excluded by their professional liability coverage?
Medical malpractice policies are designed to cover exactly what their name suggests — liability arising out of medical professional services, says Michael G. Merlo, Esq., managing director of Casualty Legal and Claims Practice, Aon Broking. In reality, not many EPs carefully read their insurance policies.
“If the policy is provided by the employer, the EP might not even have ready access to it,” Merlo notes. First, EPs need to understand what is excluded by their malpractice coverage. “Then, they should assess whether they have liability exposure in one of the excluded areas,” Merlo says.
Here are some areas of risk that ED professional liability insurance typically doesn’t cover:
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Emergency Medical Treatment and Labor (EMTALA) violations.
If an EP is accused of an EMTALA violation, the fine of up to $50,000 per occurrence is completely uncovered by insurance.
“You’re on your own for that, and you may also be on your own for defense costs. In general, neither one is going to be covered,” says Andy Walker, MD, FAAEM, an EP who provides legal consulting in defense of EPs.
Most Tennessee physicians are covered by physician-owned insurance companies, some of which do cover defense costs for alleged EMTALA violations. Several years ago, Walker was investigated for an alleged EMTALA violation. While his coverage wouldn’t have covered any fines, it did cover his defense costs. Walker was ultimately exonerated.
How much would an EP pay out-of-pocket to defend against an alleged EMTALA violation?
“That depends on how long and contentious the investigation and prosecution are,” says Walker. “It would have cost me about $4,000, and I never even had to talk to an investigator or judge — just my own lawyer.”
While EMTALA regulations allow a hospital to be sued by a patient for an EMTALA violation, the individual EP cannot be sued. That doesn’t necessarily stop a plaintiff attorney from filing suit against the EP, who then has to spend money to go to court just to have the suit thrown out.
“Even though courts in multiple jurisdictions have consistently ruled that EMTALA is not a federal malpractice statute, plaintiff attorneys will frequently threaten an EMTALA action,” Walker says.
The alleged EMTALA violation is used as leverage to get the hospital — and sometimes the EP — to settle a malpractice claim.
“Even though those allegations are usually baseless, it still costs money to defend yourself,” Walker says. “There is also the threat of a fine if the feds decide you are guilty.”
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Allegations of criminal activity.
“In emergency medicine, this is not as farfetched as it sounds,” Walker says, noting ED staff are sometimes the victims of physical attacks by patients or visitors. “That’s just an unfortunate reality of our specialty. We all have the right to defend ourselves. You don’t lose that right just because you are in a hospital.”
If the local prosecutor decides that physical force used by the EP was not justified, the EP could end up charged with assault and battery. This is unlikely, however.
“I’ve never heard of a local prosecutor who came after an EP. Most are very sympathetic,” Walker says.
The EP’s response has to be proportional to the threat, Walker advises, and the EP should carefully document what happened.
Walker is unaware of any instances in which an EP was charged with criminal activity for something that happened while the EP was on duty in the ED, but says this has happened in other specialties. “There have been times where what should have been a civil suit was elevated to a criminal charge by the local DA when a patient died,” he says.
Merlo says allegations of assault and battery are more likely against EPs than physicians in other specialties. This is because EPs have no prior relationship with their patients, who are sometimes under the influence of drugs or alcohol.
“Incidents in that environment are more likely, and could be expressly excluded, depending on the specific policy wording,” Merlo says.
If the EP’s conduct is truly intentional, not only the EP’s actions, but also the injury the EP caused, “that’s more likely to be excluded, even if it was otherwise a covered risk,” Merlo says.
Policies typically have an “expected and intended” exclusion.
“If the EP intended to harm the patient, then there is less likely to be coverage, because it’s more likely that would be considered an excluded intentional act under the law,” Merlo says.
If a patient sues an EP for sexual harassment, or a local prosecutor alleges sexual assault, “those things are not covered, because they don’t involve allegations of professional negligence,” Walker says.
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Care provided outside the hospital the EP works in.
If the EP’s coverage is provided by an emergency medicine group, “it almost certainly does not cover anything that you do medically outside of the hospital where you work,” Walker says.
Similarly, if an EP receives coverage at one hospital, and also works at another hospital, the care provided by the EP at the second hospital is probably not covered unless that hospital provides the EP with a separate policy.
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Care provided informally.
Suppose an EP writes a prescription for amoxicillin for a neighbor’s child, who has an allergic reaction, leading the parents to sue the EP.
“EPs need to remember when they’re doing a favor for friend or neighbor, they are totally exposed,” Walker says. “No matter how ridiculous or unfair the allegations might be, the EP has to pay for his or her own defense.”
While most states have Good Samaritan laws to protect EPs legally, the EPs still have to go to court and defend themselves — at their own expense.
EPs often assume that their homeowners insurance or umbrella liability policy covers such situations.
“Almost all of them have a clause that excludes professional activity,” Walker says. “Your malpractice insurance, which covers professional activity, doesn’t apply outside the hospital.”
A separate policy for such situations might be warranted.
“These policies may not be too expensive, because they exclude your primary workplace and just fill in the gaps. It’s worth looking into,” Walker advises.
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Defense against a complaint filed with the state licensing board.
Since this is not a civil lawsuit alleging professional negligence, the EP’s defense is not covered by malpractice insurance.
“You can defend yourself, but that’s a bad idea,” Walker warns, noting the rules of evidence put the EP at a distinct disadvantage. “EPs do not have nearly the rights as a criminal defendant would. It costs money and is not covered, but you should retain counsel who is very experienced with state licensing issues.”
SOURCES
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Michael G. Merlo, Esq., Managing Director, Casualty Legal and Claims Practice, Aon Broking, Chicago. Phone: (312) 381-5169. Email: [email protected].
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Andy Walker, MD, FAAEM, Nashville, TN. Email: [email protected].
