December 2004

Settling a case with a patient by yourself

by Timothy Feuling

Sometimes, when a problem arises with a patient, it may be tempting to just forget the insurance carriers and lawyers and see if you can work things out between the two of you.

For instance, a patient mentions to you that he thinks his headaches may be due to the adjustments you gave him. He says he's had to take several days off work because of them and thinks it would only be fair if you reduced your bill ‑‑ or compensated him ‑‑ for the salary he lost.

Or, perhaps a patient says she may have to go to counseling because she was so upset about the "joke" you made about her size and feels you should pay something towards the therapy.

You may be tempted to just pay these people off and send them on their way, figuring that if they get a few bucks from you, they'll drop the whole thing. You may be worried that your insurance premiums will go up if you have a claim, or that you'll have a black mark on your record if the patient actually files a complaint with the board. Or, you may think you can have the patient sign a release stating that by accepting the settlement, the patient gives up the right to file a lawsuit.

However, it's important that you never settle such situations with the patients yourself. You need to report the incident to your malpractice insurance carrier and tell the patient that your insurance company (or company policy) doesn't permit you to make any such payments.

You won't be lying ‑‑ every insurance policy requires you to notify the carrier "in a timely manner" about any situations that could possibly lead to a lawsuit. Failure to follow those instructions could invalidate the policy coverage if you're sued later on. In addition, your willingness to pay a patient ‑‑ either in money, reduction in a bill, or payment toward other health care ‑‑ can be taken as a tacit admission of guilt. If the patient decides to sue you, the plaintiff's attorney will undoubtedly make it known in court that you paid the patient off. You'll probably be asked: "Why would you have given my client money if you weren't guilty?" The plaintiff may even try to make it seem as though you were trying to bribe the patient into not suing you.

Even getting the patient to sign a release doesn't protect you. It probably won't legally bar the patient from filing a lawsuit and may be interpreted in court (with the help of the plaintiff's attorney) as your way of trying to intimidate or hush up the patient.

File the report with your insurance company even if you are determined to work things out with the patient. Most carriers can provide a release form if you choose to refund fees as a gesture of "goodwill." By reporting the incident, you also have a chance to speak with a claims adjuster (many of whom are attorneys) as a resource to discuss the specific patient situation.

When you report the incident to your carrier, they will determine whether the situation demands immediate action, such as securing patient records or questioning the patient. In the meantime, put in writing as much as you can about the episode, including exactly what the patient said and asked for. Do this even if the patient appears to be willing to forget the matter.

All notes and correspondence to and from the insurance company should be kept in a separate personal insurance file ‑‑ not the patient's folders. It is highly recommended that you do not make any of these communications as a part of the patient's records, since that would make them available to the patients and their attorneys if the situation escalates to a lawsuit.

When it comes to accusations by patients, there is no easy way out. It's always best to allow your insurance company to do what they do best ‑‑ protect you and your interests.

(Timothy J. Feuling is president of Chiropractic Benefit Services (CBS) and a member of the Board of Directors of the World Chiropractic Alliance. He assists doctors in maximizing their practices through the proper choice of insurance and related services. Doctors may contact him with questions, comments, and requests for insurance quotes at 2950 N. Dobson Rd. Ste. 1, Chandler, AZ 85224, by phone at 800‑883‑0412 or by e‑mail: feuling@cbsmalpractice.com).

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Policy provisions

The standard language used in most policies is:

Your duties in the event of a claim

The Insured must give us written notice as soon as reasonably possible during your certificate period of any claim made against the Insured. We agree the Insured may have up to, but not to exceed, 60 days after the certificate period expiration to report to us a claim made against the Insured during your certificate period if the reporting of such claim is as soon as reasonably possible.

The Insured must:

a. immediately forward all documents received in connection with the claim to us;

b. fully cooperate with us or our designee in the investigation, the making of settlements, the conduct of civil proceedings, or enforcing any right of contribution or indemnity against another who may be liable to the Insured in connection with a claim;

c. attend depositions, hearings and trials;

d. assist in securing and giving evidence obtaining the attendance of witnesses; and

e. refuse, except at the Insured's own cost, to admit any liability, assume any damages, voluntarily make any payments, or incur any claim expenses.

Duties in the event of a potential claim

If, during your certificate period, the Insured becomes aware of a chiropractic incident that may reasonably be expected to be the basis of a claim against the Insured, the Insured must give written notice to us prior to the expiration of your certificate period. Such notice must state the reasons for anticipating a claim, with full particulars.