Professional Liability

Date: 8/8/08
Place: Kitchen
Time: 7:07pm

Many actions we take during our lives have the potential to create harm to others and, in turn, trigger consequences. Problems may arise through our personal activities, including recreation and hobbies. They may also occur while performing our jobs. There is a particular danger of loss accompanied by legal ramifications when a job has a higher, expert status. When a party has a certain level of expertise, there is a higher expectation regarding job performance. And that means that there is a greater chance that someone will be unhappy if the performance fails to match or exceed expectations.

Professionals, such as doctors, allied health professionals, lawyers and accountants, have long been held highly accountable for the consequences of their decisions. While such professions are the most prominent, many other occupations face an exposure to liability loss that needs special protection, including but not limited to pharmacists, architects, engineers, opticians, insurance and expert consultants. I have decided to focus on the medical assistant.

One of the most important employment benefits is good malpractice and professional liability insurance. Every medical assistant should be encouraged to make sure they have adequate insurance coverage when working in a medical office, walk in clinic, or any other treatment facility. Even though medical assistants are dependent practitioners and work under the supervision of the physician, and the physician is responsible for their actions, it does not absolve them from risk of individual liability. It is not enough to accept insurance under the employer’s policy as a rider, and assume this is adequate protection in case of a lawsuit. Medical assistants should insist on their own personal policy, either through their employer or on their own. The reason is simple: Each healthcare provider is responsible for his or her own negligent acts, since malpractice is defined as "the negligent act of a person with specialized training and education." This is not to say, that medical assistants go out there and act irresponsible, doing rush jobs, and incompetent work. Mistakes, accidents, oversights, injuries, no matter how skilled and careful, can happen even to the very best. They usually occur when least expected and inadvertently cause harm to a patient! The requirements for a successful suit in negligence include: 1. A duty requiring a person to conform to a standard of conduct that protects others from unreasonable risk of harm. 2. A breach of that duty (i.e., the person's failure to conform to the standard of conduct.) 3. A causal connection between the breach of the duty and the resulting injury. 4. A resulting injury or damage which results in measurable physical, emotional or economic harm. It is not true that medical assistants are not being sued! Respondent superior is a long established doctrine that applies when a "master" acts through the "servant" to accomplish the master's task. The actions of the servant are imputed to the master. If the servant acts negligently, the servant is directly responsible for the negligence, while the master is vicariously liable for the servant's actions. Tort or negligence law imposes a minimum level of due care on all persons in their interactions with others, including people who choose to volunteer. Negligence is generally considered to be doing something that a person of ordinary prudence would not have done under similar circumstances. Public education is a two-edged sword. As more patients, their friends, and malpractice lawyers become aware of the role of the medial assistant, they also see a potential malpractice target if they believe they have received a poor standard of care. Injured patients, either on their own, or encouraged by others, wind up taking recourse to the courts. Situations involving injuries or damages that generations ago would have been ignored by the injured person are now regularly the basis for lawsuits. Liability is a major risk for professionals such as medical assistants. Current legal assumption of medical malpractice dictates that as many people as possible will be named in a suit. This can and does include medical assistants as well. Regardless whether a medical assistant is covered under the employer’s policy, he or she may still be liable for his or her own negligence and may still be liable for all or part of a plaintiff’s award or settlement. In some cases the employee may have to compensate the employer who has paid damages to the claimant. A medical assistant can either assume that liability him or herself or buy an insurance policy to transfer that risk. Insurance companies accept the transfer of risk in exchange for the payment of premiums. Therefore, whether as a student on externship or as a professional medical assistant working under a physician, they must get their own malpractice and professional liability insurance as soon as possible! It is really worth the cost and effort, and regarding cost, it doesn't cost much at all! Should medical assistants ever decide to volunteer, or work at a part-time position, or even do private duty, since many medical assistants have a background as former home health aides or CNAs, in additional to their full-time position, an individual policy covers you for their duties in both positions and circumstances. If they accept a position and then decide they want to take a position elsewhere, their individual coverage follows them to their new position, even if the previous employer paid the premiums for the coverage. However, realize that the previous employer may request reimbursement. There even is a way to eliminate gaps in coverage by requesting prior acts coverage. This gives the insured retroactive coverage to cover those events that may have already occurred but have not yet been reported. I bet most of us didn't even know that! How much you pay for your insurance premium depends on your responsibilities, the location of your practice setting and the limits of liability you choose. If the employer insists that the assistant is to be covered under their policy (rider) and they can't afford to purchase their own personal policy, they should ask the employer for a copy of the certificate of insurance for your analysis. Here is a checklist of items to use when analyzing the employer’s policy: 1. Are you listed by name on your employer’s policy? 2. Are legal costs included in the limits of liability, or will they be paid in addition to policy limits? 3. If a malpractice claim is filed against you, will this professional liability policy pay legal fees and court costs in addition to your policy limit, even if you are not liable for the charges brought against you? 4. If you decide to change employers and are covered under a claims-made policy, will your former employer be responsible for paying the cost of the tail coverage? 5. Is policy available in all 50 states? If you answered NO to any of these questions, investigate purchasing your own individual policy through one of the many malpractice and professional liability programs available