Question

In the discussion preparation, you were asked to analyze the major connections between liability of professionals, insurance policy coverage, and settlement of claims due to health care liability issues. Consider the concept of insurance coverage denial. Ascertain the manner in which such denial is built on the limitation clauses and conditions set forth by the insurance provider.

Answer 1

Medical professional liability insurance, sometimes known as medical malpractice insurance, is one type of professional liability insurance which protects physicians and other licensed health care professionals (e.g., dentists, nurses) from liability associated with wrongful practices resulting in bodily injury, medical expenses and property damage, as well as the cost of defending lawsuits related to such claims.

Overview: A medical professional liability insurance policy covers bodily injury or property damage as well as liability for personal injury such as mental anguish. The complexity involved in discovering negligence results in a higher percentage of premium dollars going toward defense and cost containment expenses. Medical liability insurers spend substantial funds investigating and defending claims where there is an adverse patient outcome not resulting from negligence.

There are two basic types of malpractice insurance—occurrence or claims-made. Many insurers write on a claims-made form basis where a policy in effect at the time a claim is reported responds for the loss, while the policy remains in force and during any applicable extended reporting period. The policy that was more popular in earlier times is occurrence-made which covers a loss that “occurs” during the policy period, regardless of when the claim was made, and even after the policy has been canceled.

The medical professional liability insurance market has occasionally experienced times of crisis, such as during the late 1990s, leading to high prices for policyholders. These times were marked by volatile changes in premium, declines in investments, rapidly increasing loss ratios as a result of increases in claims payments and defense and cost containment expenses, and the development of a large reserve deficiency.

Insurance, what is it?
Insurance takes many forms but generally serves to provide security to those who purchase it in an attempt to provide predictability in uncertain situations. Insurance makes dollars available to compensate for loses that are incurred from unpredictable or undesirable events. Insurance is one mechanism used to protect individuals and organizations against the risk of loss by distributing the burden of losses over a large number of individuals. Based on the law of averages, actuarial projected losses drive formulas for premium dollars that are then paid to contribute to the coverage reserves. These reserves are used to provide compensation for any member of the group who suffers from a defined loss.
Medical professional liability insurance (MPLI) is often identified under the misnomer of medical malpractice insurance (MMI). It is purchased to protect a physician or health care institution from the financial risks-the liability-of practicing medicine. More specifically it protects the physician from the consequences of a patient’s claim that he or she was injured as a result of the physicians’ negligence. This insurance is purchased through a contractual agreement called the policy, in exchange for a premium. Through this agreement the insurance company agrees to financial responsibility for the defense and payment of claims against the policy holder (physician) up to a fixed ceiling of coverage (liability limit) for a specified length of time (the policy period). When physicians purchase commercially available professional liability insurance they “transfer risk” to the insurance company. That is, with the payment of premium dollars they transfer responsibility for any claim against them and place the insurance company instead of themselves at risk for any dollars paid on claim defense or resolution. The policy typically identifies certain excluded coverage. This excluded coverage describes or lists acts not covered by insurance ie, intentional misconduct - acts that fall outside of the actual practice of medicine ie, sexual misconduct.
Medical professional liability insurance provides third-party coverage, which means it reimburses a person (usually the injured person or their family) who is not one of the two original parties to the insurance contract. This reimbursement is called indemnity. In addition most insurance policies provide for first-party coverage to the physician for the cost incurred in defending a claim, whether or not indemnity is ever paid.
In spreading the risk of loss, insurance companies seek to insure as many physicians as possible and collect appropriate premiums. The premiums are based on considerations of numerous issues including physician specialty, practice patterns, past claims history, and geographical location. It is common for insurers to consider “experience ratings” of a physician based on claims experience, with higher

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premiums charged for physician’s greater claims experience. Premiums are calculated using complex formulations that consider how much the insurer believes they will have to pay in losses, so necessary dollars can be set aside in reserves (for future loses), costs of business, desired financial margins, and any returns on invested premium dollars. By preference, insurers would sooner seek out those physicians with less likelihood of incurring costs through claims. Insurers believe a predictor of future claims is a history of past claims. Once collected, premium dollars are invested in order to generate additional reserve dollars and maximize investment income.
Interestingly, insurers also buy insurance, called reinsurance. Reinsurance is essentially a sharing of loss between insurers in which a primary insurer assigns part of its total loss exposure to the reinsurer. The greater the risk to the primary insurer, the lower the secondary insurers premium. In a world filled with risks and unpredictable jury awards secondary insurers are harder to find in the medical professional liability market, and if available, rates are high, requiring primary insurers to collect more in premium dollars to bolster reserves.
Historically the insurance business has been highly competitive with large numbers of providers offering fairly uniform policies. A competitive market often drives premiums downward in the primary insurance arena as companies try to enhance their market share. As the insurance market “hardens,” fewer dollars are available for secondary insurance and companies must compete to get those dollars. As the costs of doing business increase primarily through increasing numbers of claims (frequency) or high dollar indemnity payments for claims (severity) insurers must adjust premiums to account for rising costs. The combination of rising costs from frequent and large liability judgments and settlements, and a hardened secondary market that does not allow insurers to pass risk and costs on, requires insurers to raise premiums to make up for risk costs, find workable solutions to dramatically reduce risk of claims, or leave a specific insurance market or risk financial insolvency. Insurance companies, like all commercial business must either make a profit or terminate their business. In a post 9/11 unpredictable world with frequent medical liability claims and unprecedented jury awards, medical professional liability insurers have increasingly left the insurance market for more predictable business lines. This leaves fewer options to physicians for insurance, and those companies remaining offer insurance products that are often very different from what the Emergency Physician understands and has traditionally expected.
Prior to the 1970s, medical malpractice insurance was entirely provided through occurrence policies. Occurrence policies cover all claims that arise from incidents that take place during a given policy period, regardless of when the claims are reported to the insurer during that period. An incident or occurrence was typically defined as an event that causes unanticipated harm to a patient from an omission or affirmative act. Such policies were typically more expensive since they covered large periods of time from an event to over 20 years after an event, when the statute of limitations in filing a claim “tolled” thus preventing a claim from being filed. This long “tail” of responsibility for liability exposure required insurers to carefully predict future indemnity payments and thus accurately predict current premium rates so as to have enough reserve dollars for future payouts in claims.
The unpredictability of medical malpractice claims and awards, with costs spiraling upward triggered the development of a new insurance product referred to as “claims made.” Claims made policies in many ways run counter to the common understanding of what insurance is supposed to cover, future claims. Yet, claims made policies allow insurers to more accurately adjust premium and reserve dollars based on trends and projections in various markets and business lines. Under claims made policies, claims have to be asserted against a physician before the end of the insurer-insured relationship and the incident being reported must have occurred after the physician first purchased a policy so the policy typically does not cover “prior acts.” If a physician stops practicing medicine, changes insurers ie, switching jobs, or has the insurance terminated, events occurring after the insurance policy terminates are not covered unless “tail or prior acts insurance” is purchased. Purchase of tail insurance provides coverage of claims for incidents

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that may have occurred under the old policy but that do not arise until after its expiration. A physician should carefully understand how the insurance company defines a claim to understand how coverage is provided, but to be safe it is best that tail coverage considers claims from the time of the event, not just the date of a demand or lawsuit. Various “tail coverage” may be prorated to account for varying periods of time to be covered when the policy terminates ie, 90 days, 10 years, 20 years, etc. post policy termination. There is generally a strict time period during which a physician can purchase tail coverage and this may be regulated by the state insurance laws. Most state laws require an automatic coverage for up to 90 days post termination. Once the deadline has passed for establishing coverage the insurer has no obligation to provide it. Some policies allow lower tail costs by reducing the policy coverage limits or a higher deductible for each claim. In some claims made policies premiums may increase as the policy matures. This allows the premiums to build reserves as the increase in practice exposes the insured to the potential for increased frequency of claims. In claims made policies, premiums may also vary as companies chose to accrue more dollars to account for an ultimate “tail coverage” in the future. This may alleviate or diminish the one time “tail premium” when the individual is no longer insured but means a higher initial premium rate. In the past some insurance companies provided “nose coverage” or what is technically referred to as prior acts coverage. This is essentially a “tail policy” purchased at the time of a new claims-made policy. If it is offered, it is usually very expensive and in today’s insurance market it is very difficult to find a reliable and affordable “nose coverage” product.
Both the physician and the insurer have a right to non-renew or cancel a policy if appropriate notice is provided. This notice is typically 90 days. Insurance companies typically must act in good faith and have a “cause” if they decide to cancel a policy. Some reasons for canceling a policy include false or fraudulent statements on an insurance application, changes in a medical practice that creates unacceptable exposure to claims, failure to comply with the business relationship ie, not paying premiums, or loss of a license to practice medicine.
All insurance is not the same!
Physicians should be aware that not all insurance is the same. It is important to understand what is covered under the policy and what is excluded. Some policies only cover direct patient care and exclude care outside of geographical boundaries ie, state or nation. Some policies allow for coverage in work related activities such as EMS supervision, committee work or peer review. Some insurance may assist with legal expenses related to adverse actions against the physician’s credentials or license. Many physicians desire to find coverage for activities outside of direct patient care such as supervising residents, providing community services for events, or while serving as an event physician or as a good Samaritan. In the current litigious environment with insurers sensitive to high risk exposures to litigation, it is best to ensure associated activities are covered through a policy by having a letter stipulating the activity is covered under the policy. Often it is necessary and safest for the physicians to have the event provide the physician coverage.

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