In a letter dated, Nov. 24, 2004, AMC/NOMA Secretary/Treasurer and Physicians’ Advocacy Committee Chair, J. Richard Ludgin, M.D., J.D. submitted to the Director of the Ohio Department of Insurance, Ann Womer Benjamin, a letter outlining our continuing concerns pertaining to the issue of “tail” coverage in Ohio. The letter, which was approved by the AMC/NOMA Board of Directors, was the direct result of ongoing concerns voiced to the AMC/NOMA from members regarding this issue. During our review of this matter, it has been shown that the policies from the major insurers require a physician receiving a death, disability or retirement (DDR) tail never practice medicine again or, if he does, he risks having his reporting endorsement contract voided. The AMC/NOMA believes that there are many pressing social issues in healthcare that make this waste of talent a travesty. We want to see adoption of a series of exceptions that will not void the tail coverage – such as, working in a free clinic, teaching interns, residents and fellows.
The AMC/NOMA views this issue in the same light as enterprise liability. Physicians who want to work another year or two have been “forced” to retire early because their group is switching insurers and they will have to remain with that insurer for three to five years in order to qualify for a DDR tail. To encourage physicians to remain in practice, the “waiting period” for tail coverage needs to accommodate the realities of the public’s need for care.
Draft model policy language, suggested by Dr. Ludgin on behalf of AMC/NOMA included language to have professional liability companies consider a policy that provided for a “No Cost Extended Reporting Endorsement.” This suggested policy asks that if the named insured should die or become physically or mentally disabled to where he can no longer practice medicine, the company shall offer, at no additional cost, an extended reporting endorsement with new limits of liability at the limits in effect for the named insured at the time of death or the date on which his disability requires he stop practicing medicine.
Other suggestions made to ODI included that if the named insured elects to retire from the active clinical practice of medicine, the company shall offer, at no additional cost, an extended reporting endorsement with new limits of liability at the limits in effect for the named insured on the date of his retirement. The draft policy submitted to ODI also included conditions and exceptions that would apply to the extended reporting endorsements applicable to physicians who retire. The suggested draft indicates that retirement shall mean the complete cessation from the practice of clinical medicine for a period of at least five years except:
i. Physicians may engage in medical research that does not involve patients.
ii. Physicians may teach in a non-clinical (non-patient care) setting – ex: classroom.
iii. Physicians may engage in claim review for the State or Federal Government of for private or other “public” health insurer.
iv. Physicians may engage in such activities as:
1. JCAHO Survey (for the JCAHO or for a private organization)
2. Any other form of consultation or employment that involves the use of their medical knowledge but does not include any form of patient care.
v. Physicians may provide clinical services for government sponsored and independent free clinics so long as:
1. Professional Liability coverage is afforded to physician by that entity.
2. Any income derived from this activity is de minimus (less than $100,000/year).
vi. Physicians may provide clinical services in the form of supervising physicians-in-training (interns, residents, and fellows) so long as they Professional Liability coverage is afforded by the organization or institution that provides the setting for the intern, resident or fellow training.
There is no assurance that ODI will consider requesting that medical liability companies in Ohio adopt this model draft policy, however, the AMC/NOMA leadership plans to meet with the Director of ODI to pursue this issue. We will keep our membership apprised of any developments.
(Questions? Contact the AMC/NOMA executive vice president/CEO at 216-520-1000, ext. 321 for more information on this issue.)