...which, in the medical world, refers to the practice of not carrying malpractice insurance.
There are many states where it is mandatory for every physician to carry medical liability insurance in order to practice medicine and be on staff at a hospital. However, there are a few states where having malpractice insurance is optional. Notably Florida is one of them, and there is a growing number of doctors who are "going bare".
It is certainly not surprising, especially when you consider the fact that some of the "high-risk" specialties such as OB-GYNs need to shell out between $150,000 to $300,000 a year to have coverage. I am sure that even the harshest critic will agree that is an INSANE amount of money! In fact, I'm not sure that as an OB, you can make enough money to pay for your premiums and be able to provide for you and your family.
I recently talked to someone who has "gone bare", and they have posted a sign in their clinic saying that this medical group does NOT carry malpractice insurance. If patients have a problem with that, they will most likely go somewhere else. I'm guessing that this will help weed out patients who may have litiginous intents, but I am also guessing that this would discourage a lot of malpractice lawyers from pursuing a case if they realize the lack of a huge "jackpot" at the end of the rainbow. That particular medical practice hasn't encountered any issues so far, but it makes for an extremely precarious situation, not a place in which I would feel comfortable.
The idea of "going bare" is certainly appealing. Intellectually, it has its merits and idealistically, it would be the perfect course of action. Mostly, it would bring me great joy to really screw with the legal system and its ambulance chasing lawyers. Alas, the harsh reality is that we do not live in Utopia, and I suspect the main person getting in trouble would be me.
Thursday, August 23, 2007
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oh gee. Well, make sure your assets are well protected if you're going bare! And don't think it makes you much less of a target for lawsuits, since in many cases the hospital is still a deep pocket defendant. So if they sue you and the hospital, and you have no insurance, who defends you? Usually the insurance co pays for a lawyer to represent you -- no insurance means no lawyer (unless you want to cough up the $50K retainer out of pocket). If you have nobody to defend you, you can be sure the hospital's attorneys will try to exculpate themselves and hang the fault around your neck.
Scary that it's come to this.
Please remember that it's ambulance-chasing plaintiff's lawyers who are wrecking the medical profession. There are some bad-apple--or just plain incompetent--doctors out there who deserve to get sued. Otherwise, it would be those doctors wrecking the medical profession.
Just a thought from your friendly neighborhood med mal defense law clerk.
I'm just a lay person and so this is not something that I am familiar with.
However, I am someone who believes you pay your insurances before breakfast - you just have to do it because as our first life insurance agent said to us,"God forbid..."
Last fall, in comments to one of Surgeonsblog posts some one spelled out a pretty comprehensive guideline as to how doctors should be protecting themselves, their personal assets, the practice etc. and how there are ways to protect it all so that no one can get to it through a lawsuit. I though it was in his losing his virginity series (about his getting sued), I skimmed through the comments and didn't see it. Maybe I missed it or the comment is in with another one of his posts from the fall/early winter?
This entire discussion is out of my league but I do remember being impressed with this person/doctor's advice.
I just said this somewhere and if it was here forgive me for the repetition, but my OBGYN was livid some years back when he was telling me that the next year he might not be practicing in NJ because of the malpractice insurance. Thankfully he stayed. Maybe he just needed to vent that day.
To follow up on Shadowfax's comment... I know surgeons in FL who are 'bare' and pay a $3-5000.00 retainer for legal defense services (supposedly up to 100K). It's like 'legal insurance' or a legal prepaid 'hmo' approach. Obviously, these docs have attempted to get bullet proof asset protection. Other docs (more on the west coast) buy a minimum 250k/750k policy for 60-80K/year to get access to the legal defenses that way. They also still protect their assest to the max.
I agree - Scary...
DocInKY
I've heard of doctors who've gone bare who ask their patients to sign a waiver when they are seen, stating that this practice carries no malpractice insurance, and if anyone were to sue this practice they would go out of business, but that without malpractice, their prices are lower. It wouldn't be legally binding, of course, but it lets the patients know what's going on. Still nerve-racking, though.
Shadowfax, I think there are plenty of situations where the alleged liability is restricted to the doc and his/her clinic. Especially in urology, as we get pushed to do more and more in the office, the hospital exposure is probably decreasing. Anything ranging from delay in diagnosis or treatment to chronic pain following vasectomy. The hospital would be (gleefully) hands-off and nowhere to be seen.
I've also heard the argument that it would be better to have NO insurance, but have maximum asset protection. I think it is reasonable to have sensible insurance, in case some real harm (negligent or not) is done. But, beyond that, I agree with asset-protection, and not making myself out to be the big fat juicy target by having a ridiculously large insurance policy (malpractice, or "umbrella")
why wouldn't it be legal to have patients sign a waver? I sign wavers all the time that hold whatever company or person free from any obligation to me should something that they or their stuff do hurt me. Are none of them legally binding either? Or are doctors the victims of extra laws about such things that I am not aware of?
Anonymous, you are signing these waivers because the companies' lawyers know that naive people like you think they are really signing away their rights to sue, and thus if you get injured you will then think you just have to deal with it.
In fact, while virtually all rights are waivable, when it comes to personal injury, virtually every court in the country will hold that a personal injury waiver in a contract is unconscionable, and therefore unenforceable. There may be a few exceptions, but not in the case of medical malpractice. It used to be that charitable hospitables were immune to tort liability, but that hasn't been the case in a long time.
As a law student I happen to think this is a good thing, because if it were enforceable every doc would require you to sign a waiver before treating you, and they could chop off a leg on the wrong patient and then charge him for a prosthesis. There's some bad trial lawyers out there, but in a country like ours that has no social insurance, we need medical malpractice to protect patients and keep doctors in check. OB is disproportionately burdened, but med mal is NOT the cause of the health care crisis. Look at the stats, they all show that it accounts for 2% or less of the overall cost of healthcare in the country.
Does anyone care about the patient this "bare" physician's negligence injures who now can't afford their future medical bills, or can no longer work and can't pay their mortgage, car payment, etc?
Or do we all just assume this physician cannot be negligent?
I'd find a different doctor if mine posted a sign saying she canceled her malpractice insurance. She's a really good physician, but nobody's perfect.
Making attorneys or plaintiffs pay if they file frivolous suits might help and I'm a believer in limits for punitive damages that only raise the cost for everyone.
If physicians wanted to set up some kind of no-fault fund, like the one for vaccine-related injuries, I could support that, though. It would have to be cheaper than the current malpractice system and would do more for people who have bad outcomes, regardless of fault.
Anon 6:28PM
I agree with you. In a perfect world, I would be "bare" but with perfect maximum asset-protection. Then, if a patient of mine suffered an injury, negligent or not, I'd be willing & able to use my efforts, time, talents, and if necessary, some of my well-protected assets to help that patient as much as possible. But alas, we do not live in such an ideal world. So, I believe in having sensible malpractice insurance in line with the community, but no more. The rest, I'll leave to personal asset protection. I'm sure some docs have ridiculously large malpractice insurance limits, as well as an "extra" $5M umbrella policy to cover the kid who trips over his own feet crossing the doc's driveway.
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Jay Yew, MD
http://www.UroCanswer.com
Anon 7:26AM
what do you think of this Baltimore urologist:
http://www.baltimoresun.com/business/bal-bz.consuming24jul24,0,1909889.column?track=rss
Also, what would you estimate is the cost to our healthcare system of the widespread practice of "defensive medicine". Here's a discussion on KevinMD:
http://www.kevinmd.com/blog/2007/04/defensive-medicine.html
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Jay Yew, MD
http://www.UroCanswer.com
Malpractice insurance is optional for lawyers. Only one state requires it.
About one out of ten lawyers, maybe as much as one out of five, practices without malpractice insurance.
http://www.law.com/jsp/article.jsp?id=1150794321703
And boy, do they howl when proposals are made to require them to carry malpractice insurance.
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I am a Surgeon and I have now been bare for about four years! It is the best thing that I have done for my Practice and my patients! I have been a Physician for over 22 years and have never been sued, what a waste of money and resources!! This country needs total Tort reform, we need to have ALL Physicians just drop Med-Mal... Of course the Lawyers will go crazy and want to pass laws to require it. This is just extorsion!! Best Regards MDB
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