Consolidation of Agencies...and an Important Professional Liablility Policy Issue
by Adrienne J. Hersh, J.D., ICS General Counsel
On July, 1, 2004, Governor Rod Blagojevich issued Executive Order 2004-6, which consolidated the Department of Professional Regulation, the Department of Insurance, the Department of Financial Institutions and the Office of Banks and Real Estate into the newly created Department of Financial and Professional Regulation (DFPR). Fernando Grillo, Director of the former Department of Professional Regulation, has been appointed to serve as the Secretary of the new "super-agency." Some of you may recall that Col. Mills and I met with then-Director Grillo last year to discuss issues of mutual interest, and we have continued to maintain open and constructive communication with the Department. Secretary Grillo has invited us again to participate in a face-to-face meeting with him in October, and we look forward to having the opportunity to express our views and concerns about the licensure and enforcement of the practice of chiropractic medicine.
One of the results of the consolidation is that the newly-created "super-agency" is responsible for handling both insurance and licensure issues affecting the profession. One such matter that recently has come to ICS’s attention is the marketing of a professional liability insurance policy that offers lower premiums but requires the doctor and patient to agree that the doctor will not "offer diagnosis or treat any disease." I believe that participating in such a policy could create pitfalls for both civil malpractice claims and unprofessional conduct that could lead to licensure discipline.
First, regarding potential claims for civil malpractice (money damages), the following is what Dr. Mario Fucinari, ICS Second Vice President and noted expert on risk management, has to say on the subject:
by Mario P. Fucinari DC, CCSP
In today’s litigious society, now more than ever, a chiropractor must have malpractice insurance coverage and must be represented by a malpractice insurance carrier that will protect him or her in the case of a lawsuit. It used to be that most chiropractors were covered under the same insurance carrier. NCMIC continues to represent over 60% of the chiropractors in the United States. Presently, there are multiple carriers vying for our business. However, are all malpractice carriers equal?
One such incident arose when an ICS member asked me my opinion on a malpractice carrier. On the surface, the carrier looked legitimate. The premiums were substantially less than the leading carrier, which made it even more attractive. As is the case in most things in life, you get what you pay for. Make sure you read all contracts thoroughly before you sign!
In the application form of this insurance company, the application looked standard. However, a red flag presented itself in the "Terms of Acceptance" agreement. To qualify for a "Class 1 status or discounted Class 2 rate", the doctor was directed to copy the Terms of Acceptance agreement onto his or her letterhead. The doctor must then sign the Terms of Acceptance and have patients do likewise.
One clause of the application refers to the process of diagnosis. In the terms, you must agree to the following, "We do not offer diagnosis or treat any disease. We only offer to diagnose either vertebral subluxations or neuro-musculoskeletal conditions." When considering this clause, please make sure you are well versed on the Standards of Care in your region. Standard of Care is defined as "that course of action that a reasonably prudent [physician] in the defendant’s specialty would have taken under the same or similar circumstances." (Washington v. Washington Hospital Center, 579 A2d 177 (DC App 1990)). The Standard of Care is what you are legally judged upon in the course of your practice. A contradiction to the standard of care may constitute malpractice and subject you to monetary damages.
If you sign and have your patients sign the Terms of Acceptance, you may have indeed violated the standard of care in Illinois. According to statistics, 8% of all lawsuits brought upon chiropractors were as a result of "failure to diagnose." What would happen if an x-ray revealed a pathological condition, such as a tumor, but the physician declined to diagnose because he or she had agreed not to? The quandary arises, if you do not diagnose, you may be sued. If you did diagnose and were sued, since you signed the Terms of Acceptance stating that you do not diagnose, you would be in violation of the terms of acceptance and would be in jeopardy of this malpractice carrier denying coverage. Furthermore, if a majority of all chiropractors declined to operate under the full scope of their licensure in Illinois by declining to diagnose, would the broad scope of practice we enjoy in Illinois evaporate through lack of use?
In the legal arena, you are judged by your education and the standards of care to which you must abide. Make sure that the contract you sign conforms to the law in Illinois. Illinois Chiropractic Society members, as a membership benefit, have access to a team of professionals who can further advise you on practice laws and regulations.
Thanks to Dr. Fucinari for his above insights regarding potential malpractice liability with this type of "agreement not to diagnose" liability policy.
Another problem with this type of policy is that physicians who agree not to diagnose may be violating the Illinois Medical Practice Act and Rules and may risk subjecting their licenses to discipline. As you know, Illinois is one of the most progressive states in authorizing a broad scope of chiropractic practice under the Medical Practice Act, defining all medical practice as "hold[ing] [oneself] out to the public as being engaged in diagnosis or treatment of physical or mental ailments or conditions…" (225 ILCS 60/49). Clearly the Act contemplates that diagnosis is an integral and defining part of all types of medical practice, including chiropractic.
Section 22 of the Act (225 ILCS 60/22(a)(1)(5)) states that it is grounds for discipline for a licensee to engage in dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public. This provision is further defined in Section 1285.240 of the Rules for the Administration of the Medical Practice Act (68 Ill. Adm. Code 1285.240), which sets forth standards for determining unprofessional conduct. It seems likely that declining to perform such a core activity as diagnosis would violate professional standards defined in that section, including: Section 1285.240 Standards.
The following highlighed applicable standards...
a) Dishonorable, unethical or unprofessional conduct
1) In determining what constitutes dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public, the Disciplinary Board shall consider whether the questioned activities:
A) Are violative of ethical standards of the profession…observe laws under the Act and pertaining to any relevant specialty; to provide service with compassion and respect for human dignity).
B) Constitute a breach of the physician’s responsibility to a patient;
E) Caused actual harm to any member of the public; or
F) Are reasonably likely to cause harm to any member of the public in the future.
2) Such activities shall include, but not be limited to:
E) Committing of any other act or omission which breaches the physician’s responsibility to a patient according to accepted medical standards of practice.
b) Immoral Conduct
1) Immoral conduct in the commission of any act related to the licensee’s practice means conduct which:
A) Demonstrates moral indifference to the opinions of the good and respectable members of the profession;
B) Is inimical to the public welfare;
C) Abuses the physician/patient relationship by taking unfair advantage of a patient’s vulnerability; and
D) Is committed in the course of the practice of medicine.
2) In determining immoral conduct in the commission of any act related to the licensee’s practice, the Disciplinary Board shall consider, but not be limited to, the following standards:
A) Taking advantage of a patient’s vulnerability by committing an act or acts which violate established codes of professional behavior expected on the part of a physician;
F) Any other behavior which violates established codes of physician behavior or which violates established ethical principles commonly associated with the practice of medicine.
c) In determining what constitutes gross negligence, the Disciplinary Board shall consider gross negligence to be an act or omission which is evidence of recklessness or carelessness toward or a disregard for the safety or wellbeing of the patient, and which results in injury to the patient.
The obligation to diagnose is such a fundamentally and universally accepted part of the standard of care for all physicians that an agreement that vitiates the obligation to diagnose would violate ethical standards and breach the physician’s responsibility to the patient, thus violating the Medical Practice Act and Rules. Licensees may not absolve themselves of adherence to these professional standards by contracting them away or by requiring waivers from their patients.