Have Liability on Your Side in Protests

Physician's Money Digest, March31 2004, Volume 11, Issue 6

The AMA has documented thatnearly 20 states are currently facinga medical liability insurance crisis.An additional 25 states are right behind,with liability insurance premiums skyrocketingand insurance companies not writingnew policies for physicians. "The crisis continuesto get worse," says AMA PresidentDonald J. Palmisano, MD, JD. "Our concernis that patients will continue to lose accessto care unless the liability system is fixed."

Many physicians nationwide, in aneffort to raise public and legislative awarenessof the seriousness of the problem, aretemporarily closing their doors to protestwhat they say has become an intolerablesituation. Walkouts have occurred in severalstates. Thus far, the efforts have beensuccessful in bringing the issue to the public'sattention via the front pages of newspaperscountrywide.

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However, a report in (www.physicianspractice.com) suggeststhat before you close your doors in protestof exorbitant malpractice insurance rates,there are a few steps you should take toprotect yourself from legal risk and toavoid a negative backlash from the publicin general and your patients in particular.

Continue Communication

The first and most important point is totalk to your patients. You know, of course,that as a physician you are not allowed toabandon your patients. But the advantagesof talking to them before takingpart in a protest are much more far-reaching.As the article notes, patients tend tohave tremendous respect for their doctors.So talking to them, even helping themunderstand how the situation is affectingyou and your practice, can go a long waytoward easing their concerns and evenhaving them on your side.

The challenge here is to strike a balancebetween inconveniencing your patientsand endangering them, and between angeringthem and making certain their angeris not directed at you. Communicateearly and often with your patients. Makecertain they understand that if they dobecome seriously ill they can receive careat the emergency room. And if you needto make special arrangements for certainpatients, such as a woman who might gointo labor, do so, and let the patient knowthat these arrangements have been made.

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Patient abandonment is one of the twolegal pitfalls physicians can encounter bytaking part in a walkout. The article points out that you areentitled to end a relationship with apatient for any number of reasons, butyou can't drop them without notice andwithout referral to another physician. Ifyou do, and any harm comes to thatpatient, you are liable. That's why communicatingwith your patients is so important.As the article notes, patients are more likelyto sue you when they're angry with you.

Know the Rules

The second legal issue doctors couldencounter has to do with antitrust rules.It's a question of semantics, and it's whyphysicians prefer the terms "protest" or"rally" as opposed to "walkout."

The article points out that physicianpractices are independent businesses, andare therefore not permitted to bandtogether to form a labor union or participatein group boycotts. However, physiciansare also citizens, and there's nothingthat says a citizen can't participate in anorderly protest or rally.

The linguistics and their interpretationare fuzzy, to be sure. For example, in astrike, workers are taking action againsttheir employers and staying out until theissues, such as greater pay raises, areresolved. Physicians, on the other hand,are closing down their own practices,going back to work at a predeterminedtime—regardless of whether or not theissues are resolved—and are asking forpolicy changes, not pay raises. But convincingpeople that collusion has not occurredmight be difficult to do.

Line Up Support

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The article suggeststhat to be sure you cover all your bases,you might want to talk to your state orlocal medical association. The association isnot going to help you organize, but it canprovide advice and guidance on the legalissues. In addition, check with your personalattorney.