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Dynamic Chiropractic – September 12, 1990, Vol. 08, Issue 19
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Dynamic Chiropractic

Protecting Practitioners

By Donald M. Petersen Jr., BS, HCD(hc), FICC(h), Publisher

Why are most malpractice insurance companies refusing to insure DCs who use "research/recruitment schemes?"

In the past few months, most of the malpractice insurance companies serving chiropractic practitioners, have been faced with a dilemma.

The dilemma centers around a number of psuedo-research programs that have been accused of being patient recruitment devices in disguise.

This dilemma would not appear to be of any concern to these malpractice insurance carriers. This would seem an issue for state boards (please see "Alabama Outlaws VSRI" in the August 1, 1990 "DC") and state and national associations.

So, why are the malpractice carriers involved?

And why have many of them decided to establish policies against these types of programs?

(Please see "NCC Chiropractic Malpractice Program Takes Stand in Research Subject Debate" in the June 6, 1990 issue, "OUM Insurance Group Adopts Policy On Research/Recruitment Programs" in the August 15, 1990 issue and "NCMIC Targets VSRI and Other Patient Solicitation Schemes" in this issue.)

Spokespersons for the chiropractic malpractice insurance companies have identified three problem ares:

INCREASE IN HAZARD

The scenario is quite simple. If a chiropractor is involved in the examination and x-raying of members of the public, there is a marked increase in the total number of individuals who could possibly file a malpractice suit against the doctor. This would be especially prevalent in the case of x-ray.

One can easily imagine a research subject being x-rayed for research, refusing to be solicited as a patient, and then six months later, being told by an MD that they have an ailment that could have been cured "if only you had been x-rayed six months ago." The responsibilities associated with examining members of the public do not cease strictly because someone is conducting "research." The DC will still be liable for what should have been detected on the x-ray or during the examination.

RISK OF LOSS

Even if the research subject accepts the offer to become a patient, there is the ultimate possibility that a malpractice claim could occur. How the plaintiff was encouraged to become a patient can be an important point in any malpractice litigation.

As OUM President Kenneth E. Davis said, "Allegations of inappropriate advertising or unfair patient solicitation raises the specter of unnecessary and perhaps illegal treatment. Unnecessary treatment is difficult, if not impossible, to defend and control in court."

With the potential of uncontrollable settlements and awards, it is important for the chiropractor being sued to consider the possibility of being liable for awards and settlements in excess of their coverage.

ILLEGAL ACTS

No malpractice policies cover illegal acts. Should these types of patient recruitment schemes be found to be illegal under existing law (as it appears to be in some states) or should a state develop a regulation to make them illegal, (as was the case in Alabama) then quite obviously no insurance carrier would protect the participating chiropractor.

There are at least 25 states that are examining the issue of using research for patient recruitment. Whether or not other states are going to follow the lead of Alabama in outlawing these schemes should be obvious in the very near future.

This issue is being taken seriously to the point that these malpractice insurance companies are modifying their applications to expose those DCs involved. You will undoubtedly notice these additions the next time you have to fill one of the annual questionnaires.

Ultimately, the chiropractor and the malpractice carrier are partners. The DC can't practice (or shouldn't practice in today's litigious society) without malpractice insurance. Without the doctor, the insurance company doesn't have anyone to insure.

You, as the chiropractor, need to see yourself and your insurance as partners. If there is some policy that they have that you feel is not in the best interest of chiropractic, you should tell them. Their job is to ultimately protect you, the practitioner. If there are practices within the chiropractic profession that they believe threaten your security, you can be certain that they will act.


Click here for more information about Donald M. Petersen Jr., BS, HCD(hc), FICC(h), Publisher.

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