Potential Medical Malpractice Claims: What to Do When Incidents Cause Concern

You want to give every patient the best possible care and outcome every day, but errors and other unfortunate incidents can sometimes cause harm to your patients. And often, people look for someone to blame. The idea of a medical malpractice claim can be terrifying, especially if that blames comes at you in the form of a lawsuit or licensing complaint.

So, if something bad happens to a patient under your care, what do you do?

Do you contact your medical malpractice provider? Or sit back and wait for something to happen?

In this article, we share a real-life example of an important step a physical therapist (PT) took to protect himself after an injury occurred to a patient. We’ll also provide important answers to some common questions you might ask if you’re ever in a similar situation.

Real Story: A Torn Meniscus & Allegation

A patient who recently underwent hip surgery was sent to physical therapy for a series of post-surgical treatment sessions. The therapist was an experienced PT and business owner, and a Berxi customer.

During one of the sessions, the patient informed our client that she had experienced pain and a “popping in her knee.” She later called the PT’s office and told him she believed the pain was a result of the physical therapy. She said she was going to get an MRI of the knee.

After learning about the patient’s knee injury, our client ended the PT sessions and advised the patient to see an orthopedist. He then took a critical step to help protect himself and his business and to adhere to a requirement of his Berxi policy: he logged in to the Berxi client portal and opened a notice of claim. Also known as a record-only claim, this notice alerts us that a claim may be filed later.

The claim landed in the hands of David Cook, Claims Examiner at Berxi, a part of Berkshire Hathaway Specialty Insurance Company (BHSIC). David contacted the client to get his side of the story. “At this point we closely monitor for any action taken by the patient. And we are sure to maintain detailed file notes on any developments,” shares David.

In this case, the PT did what malpractice insurance providers want their healthcare professionals to do. Keep reading to learn why.

8 Commonly Asked Questions About What to Do When You Face a Potential Malpractice Claim

At Berxi, we continually receive communications from our policyholders about adverse incidents in the course of care. Here are some answers to common questions our clients often ask:

A patient is furious and threatening to sue me. What should I do?

If an adverse incident happens in your business, contact your medical malpractice provider immediately and fill out a notice of claim.

Dealing with an upset or angry patient can be terrifying for any healthcare professional, especially when you fear they may take further action with a licensing board complaint or lawsuit. However, a strong malpractice insurance provider experienced in these matters and can support and advise you about what to do to help diffuse the situation.

Why should I alert my malpractice insurance provider about an adverse incident or upset patient?

At Berxi, policyholders are required to notify us about incidents as soon as they happen. This helps you because:

• You can tell us details about the incident while they’re fresh in your mind.
• You get guidance on how to properly document the incident in the event it becomes a lawsuit years later.
• You can provide the most detailed account of your role in the incident so we can best assess your potential liability.
• If we believe our client is liable, we can proactively line up an experienced attorney and begin formulating defense strategies.

I’ve made a medical error. Do I admit fault and apologize to my patient?

In his vast experience as a claims examiner, David has seen claims where clients thought they were at fault but were cleared after investigation. That’s why he advises clients to be empathetic when dealing with patients but not to admit fault or accept blame.

For example, in the case of the patient with the torn meniscus, our client could have said, “I’m sorry that this happened and that you are experiencing pain. We’re going to investigate our role in this and will follow up.”

My patient is threatening to call my licensing board. What should I do?

A licensing board complaint can be overwhelming and potentially devastating for healthcare providers. Unfortunately, you can’t control whether a patient will file one against you. At Berxi, we can assure you that if one is filed, we will cover your defense costs and provide an experienced attorney who will respond to the complaint on your behalf. That’s important since it’s much more difficult to defend a board complaint when the healthcare provider responds to a complaint versus a licensed and experienced attorney.

How do I write a medical incident report?

Your employer or insurance provider may require that you write a medical incident report. An incident report is a document that provides a detailed, written account of the chain of events leading up to an event that threatens patient safety.

A medical incident report should include:

• Date, time, and location
• Where the incident occurred
• Nature of the incident
• Name of the person(s) affected
• Witnesses and witness statements (if possible)
• Written summary of what happened, chronologically written
• Actions taken after the incident
• Name(s) of who was notified
• Recommendations to prevent future incidents

How do I let my medical malpractice provider know about a potential claim?

Most malpractice insurance companies have information on their website about how to report incidents. At Berxi, we require our policyholders to notify us by phone or online as soon as an error or other adverse incident happens.

Will the price of my policy increase if I notify my malpractice provider about an incident?

No, being involved in an incident will not impact the price of your policy.

How long does a patient or their family have to file a malpractice claim?

This question has a complicated answer that varies per state. For example, in Michigan, patients must file a claim within six months of discovering the incident, though they lose the right to file a lawsuit six years after the “negligent act” occurred. In Connecticut, however, patients have two years to file a claim after discovering the incident, and three years from the incident, regardless of when they became aware of it.

Learn more about each state’s statute of limitations for filing malpractice claims.

Why a Top Medical Malpractice Insurer Is Essential

In short, reporting adverse incidents to your malpractice insurance provider not only ensures you meet the terms of your policy but also provides the peace of mind you need if a licensing complaint or lawsuit is filed.

For our PT client in the story above, no complaint or lawsuit was filed. As a result, David was able to close the claim after just 90 days. During that time, however, our client had the assurance that Berxi was standing behind him.

“Our clients can rest assured that Berxi doesn’t cut costs. If this incident materialized into a board complaint or lawsuit, we would hire the best, most experienced attorneys to represent our client,” shares David.

To get the peace of mind of having a strong insurer that’s looking out for you, start your quote here.

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The views expressed in this article are those of the author and do not necessarily reflect those of Berxi™ or Berkshire Hathaway Specialty Insurance Company. This article (subject to change without notice) is for informational purposes only, and does not constitute professional advice. Click here to read our full disclaimer