Malpractice Insurance

One of the most important benefits an employer can offer a physician is professional liability insurance.  This type of insurance will cover a physician for any claims made against the physician related to malpractice.  Just like any other insurance policy, a physician should protect against the risk of financial loss – in this case, the risk of an adverse judgment for a malpractice claim against a physician.

Almost all employers will pay the premiums for a professional liability policy for its employed physicians.  (Note that if you are an “independent contractor” then it is customary for the physician to pay for his or her own insurance policy.)  If the employer does not pay or at least reimburse for the cost of the premium, then this should be considered a red flag as this benefit is commonly offered by employers and is considered “market”.

Your contract should specify whether the employer is responsible for obtaining and maintaining professional liability insurance for you.  If your employer offers it but it is not mentioned in your contract, then ask that it be drafted into your contract.  Other provisions to look out for:

• Policy limits – The employer should disclose how much insurance they are obtaining for you. The higher, the better!  If you are a high-risk specialist (e.g. OBGYN), then they should offer you a higher limit.  If not, you could be underinsured and would have to pay out-of-pocket if a malpractice claim is successful against you.
• Right to review – You should have the right to review a copy of your policy upon reasonable request to ensure that you are in fact insured.
• Deductibles – The contract should specify who pays any deductible. Ideally, the employer would pay it.

There are two types of malpractice insurance.  An occurrence-based policy covers you during and after the policy period (usually, your term of employment), so you do not need to worry about purchasing a “tail” policy.  An occurrence-based policy will cover you for claims both during and after your employment.  For this reason, this type of policy is more expensive than a claims-made policy.  Claims-made insurance, which is more commonly offered due to its lower cost, only covers you while you hold the policy.  So, if your contract expires on December 31^st and you receive a claim on January 1^st of the following year, you will not be covered.  To cover yourself, you will need to purchase what is called a “tail” policy.

There are no rules regarding which party pays for tail coverage. Sometimes the employer pays, sometimes the physician pays, and at other times both parties share the expense.  Tail coverages can be very expensive, especially for high-risk specialties.  If you are required to purchase a tail policy, consider the following:

• Ask how much the tail policy premium will be before you sign your contract.
• Negotiate by asking your potential employer to pay all or at least some of this expense.
• If the potential employer will pay your tail, confirm that they will cover you at the same policy limits they maintained during your employment. You should ask for coverage at the same limits offered during your employment.

The Physician Contract Lawyer will review your contract to determine if your potential employer is paying for your malpractice policy and, if so, whether you are further required to purchase a tail policy.  The Physician Contract Lawyer will suggest to you provisions to help you shift the expense for purchasing a tail to your employer.