How Health Law Could Affect Medical Professional Liability

The U.S. medical professional liability (MPL) market has been profitable in recent years, but challenges await MPL insurers because an influx of newly insured patients, coupled with healthcare delivery system changes, could expand the risks MPL insurers face.

The federal government estimates 32 million Americans who have no health insurance will become covered under the Patient Protection and Affordable Care Act (ACA), a measure which will be primarily implemented in 2014. MPL insurance policies financially protect doctors against lawsuits alleging negligence or errors and omissions on the doctors’ part that result in harm to their patients.

“Health care coverage offers no guarantee that someone will have access to healthcare,” says Kevin Bingham, an associate of the Casualty Actuarial Society (CAS) and a principal at Deloitte in Hartford. Bingham says that while 78 percent of all doctors had either a private practice or operated with one other doctor in 1978, the number of doctors who work under that business model dropped to 30 percent as of 2013.

Many of these same doctors are now working directly for hospitals, so the need for hospitals to provide personalized care has grown in importance.

“A lot of medical malpractice claims go away if there’s good customer service,” Bingham says.

“There may be fewer doctors to care for a greater number of patients,” according to Brian Ingle, a CAS fellow and executive vice president with Willis Re. Inc. in New York City. Ingle agrees with Bingham’s assessment of the changing health care delivery landscape that sees reduced health insurance reimbursement payments causing some doctors to close their private practices and either retire or work directly for hospitals.

MPL insurers could in turn lose premium revenue because half of all hospitals self-insure when it comes to MPL, according to Ingle, meaning doctors who previously purchased MPL policies will no longer need to do so.

The MPL experts who convened at the CAS annual reinsurance seminar in June also point to Massachusetts’ health care law, similar in some ways to the ACA, when arguing that a more insured populace would not necessarily reduce the general public’s reliance on hospital emergency room visits.

Technology Factors

The panel on Medical Professional Liability: Effects of the New Health Care Law, which was moderated by Athula Alwis, associate vice president and actuary, Freedom Specialty, also discussed how doctors can use technological advances to document their treatment of individual patients.

“Data and IT [information technology] is the new frontier in healthcare,” says Elke Kirsten-Brauer, executive vice president, chief underwriting officer, at the Salt Lake City, Utah-based MGIS Cos. Doctors need to make sure they’ve made progress notes after each patient visit, and record their patients’ lab results and vitals properly so this information can be used in the doctor’s defense in the event of a lawsuit.

Protecting these electronic medical records from public disclosure is also a concern for actuaries who price MPL policies and cyber-related exposures. Strict privacy laws govern the release of this information, Kirsten-Brauer says, and a single lost laptop could cost an insurer upwards of $60,000 if it stored sensitive patient information.

MPL insurer exposures could also increase as nurse practitioners and physician assistants are asked to handle a greater workload than they have previously, the panelists agree.

Topics Medical Professional Liability