As a health care professional in the rehabilitation industry, you're probably wondering, "Why in the world would I need professional liability insurance? Wouldn't I be covered under my employer or the hospital? If I am the employer, is it required? How does it protect me, and what does it cover?" Whether you are concerned about preserving your reputation or are just seeking peace of mind, we will be exploring the basics in this article.

WHAT IS IT?

Professional liability insurance is not required or mandated through every state-licensing bureau, but it is something to consider in addition to a business owner's policy or as an individual. It protects you against financial losses from lawsuits filed against you.

For those of us in the medical field—including rehabilitation services—we are expected to have extensive technical knowledge or training in our particular area of expertise. We're counted upon to perform the services for which we were hired, according to the standards of conduct in the profession. If we fail to use the degree of skill expected of us, we can be held legally responsible for any harm we cause another person.

Professional liability insurance is also known as "errors and omissions" insurance when liability is limited to acts of negligence. It's actually a specialty coverage.

According to author Jane Oppermann in her article, "Marsh Affinity Group Services' Professional Liability Insurance," found on npcentral.net,¹ "Even the best professionals can become embroiled in malpractice claims." With professional liability coverage, Marsh Affinity Group Services (www.marshaffinity.com), for example, can help pay for the cost of expert legal defense, as well as costs incurred in the defense or investigation, Oppermann writes. They will guide you through legal proceedings, pay lost work time, advise and represent you if licensing board issues are involved, and pay court costs.

PERSONAL VERSUS EMPLOYER-PROVIDED COVERAGE

According to Healthcare Providers Service Organization (HPSO), having your own personal professional liability insurance policy is highly recommended. If you count solely on your employer's program, it may not provide all the coverage you need. Through HPSO, for example, liability limits protect you only and are not shared with other employees. With coverage, there are many value-added features included in the policy. Among them include:

• license protection;
• a defense attorney;
• defendant expense benefit;
• deposition representation;
• damage to property of others;
• assault coverage;
• personal injury coverage;
• medical payments;
• first aid expenses;
• protects you on and off the job, even if you change jobs; and
• affordable group rates.

See the HPSO Web site at www.hpso.com for more details.² Professional liability insurance offered through HPSO has earned the endorsement of the American Physical Therapy Association.

OCTOBER 2007 LEGAL CASE STUDY #1

"A lawsuit brings with it significant losses, not only in time and money, but also in one of the most valuable commodities a professional possesses—self confidence," Oppermann writes. "Defending oneself consumes time, money and one's thoughts. Defendants lose valuable work time as cases drag on for months or even years. During that time, a professional's confidence may be needlessly shaken or they may experience anxiety which can significantly impinge work performance," she says.¹

There are plenty of reasons why we don't pursue professional liability insurance. Among the most common are, "That won't happen to me," "I did everything right, I just didn't document it thoroughly enough," "I'm covered under my employer's policy," or "It's too expensive to get my own coverage." You might want to give these notions a second thought after reading the following:

Therapist leaves patient on elevated therapy mat when she leaves room—fall causes facial injuries—$7,628 verdict. The plaintiff, age 32, was attending a physical therapy session at the defendant medical center. The plaintiff suffered from cerebral palsy related to a failed suicide attempt when she was a teenager and was confined to a wheelchair. The plaintiff's therapy at this session was being administered by a PT, an employee of a therapy company working inside the medical center. The plaintiff was placed on a therapy mat that was about 20 inches off the floor. The PT was briefly called out of the therapy room. The plaintiff then fell from the therapy mat. She landed on her face and sustained a bruised chin and injuries to her face. The plaintiff alleged negligence in leaving her unattended. There had been three patients and three therapists in the room, but the plaintiff claimed that when her PT left the room, she was unattended.

"The defendants argued that the plaintiff had not been left unattended in that her PT had asked the other two therapists in the room to watch the plaintiff. According to a report, a jury returned a $7,628 verdict for the plaintiff against the therapy company only. A defense verdict was returned for the medical center.³

JANUARY 2008 CASE STUDY #2

Mechanical cervical traction used without order—annular tears and herniated discs—$6.2 million verdict. The plaintiff was involved in a vehicle collision with one defendant in March 2002. The plaintiff sustained several injuries from the collision, the most serious of which was to her neck. The plaintiff's symptoms persisted and her primary care physician prescribed physical therapy. In June 2000, the plaintiff began treatment with a physical therapy treatment center. The treatment included mechanical cervical traction, even though this treatment was not prescribed. The plaintiff also claimed that the person who administered the mechanical cervical traction was an unlicensed aide. The plaintiff claimed that she suffered C4-5 and C5-6 annular tears with herniated discs as a result of the treatment. The defendants argued that the mechanical cervical traction was indicated in a trial format and that the weight used was not sufficient to cause injury.

The defendant involved in the accident claimed that the initial collision was the plaintiff's fault and that the plaintiff's injury was due to the improper traction. The plaintiff underwent a variety of treatment, but was unable to continue her medical practice as an ophthalmologic surgeon. According to the reporter, a $6,293,035.60 verdict was returned. Negligence was apportioned fifty percent to the physical therapy treatment center. Twenty-five percent negligence was apportioned to the defendant involved in the accident and twenty-five percent negligence was apportioned to the plaintiff.³

WHAT TO CONSIDER

HPSO says that assuming you're fully covered right now could be costly. Find out the facts beforehand. How do you know you have enough coverage? If you are named in a malpractice lawsuit and your legal costs and settlement or judgment exceeds your employer limits, you may need to make up the difference.

Will you be covered when you're off-duty? Many policies cover you only when you're working. That means you could be financially liable for contract work performed after hours, Good Samaritan assistance, volunteer activities, or even casual advice to a friend or neighbor, according to HPSO.

Will you share your coverage with others? If you're covered by an employer's policy, other defendants may share your liability limits. Shared limits decrease your individual protection and increase your personal financial liability. In some states, you could be found liable for the financial responsibility of others.

Does your employer-provided insurance include license protection? In addition to being named in a malpractice lawsuit, one of the most serious risks that health care professionals face is the suspension or withdrawal of their license. Without it, you lose your ability to work. Employers rarely provide license protection and are often the source of the complaint.

Remember that a lot of companies offer professional liability insurance to health care professionals, so do your research. Pay attention to policy particulars such as the insuring agreement—what it does and doesn't cover, and conditions of the contract, including exclusionary clauses. Some policies are in force 24 hours per day, without interruption of coverage even during a job change and regardless of full-time or part-time status.

Finally, we have "an aging population [who] will require complex treatment utilizing increasingly advanced technology," another liability risk, Oppermann continues. "As a rehabilitation professional, you may face increased risk exposure if you go into private practice, cope with cross-training requirements and use new technology."¹

Nina Silberstein is a contributing writer for Physical Therapy Products. For more information, contact .

REFERENCES

1. Oppermann J. Marsh Affinity Group Services' professional liability insurance. http://www.npcentral.net. Accessed July 9, 2008.
2. Health Providers Services Organization Web site. http://www.hpso.com. Accessed July 9, 2008.
3. Laska L, ed. Medical Malpractice Verdicts, Settlements & Experts. http://www.verdictslaska.com. Accessed July 14, 2008.