Risk Management: It’s Not All About Medical Malpractice Anymore

Book Review

By Murray J. Goodman; MD

In the narrow world of our day-to-day practice, orthopaedic surgeons often think of risk management strictly in terms of avoiding exposure to medical liability lawsuits. But, in the book Insurance and Risk Management Strategies for Physicians and Advisors, author, physician, and healthcare economist David E. Marcinko has assembled a cadre of experts who address the broader issue of risk management.

Link: http://www.amazon.com/Insurance-Management-Strategies-Physicians-Advisors/dp/0763733423/ref=sr_1_3?ie=UTF8&s=books&qid=1217606361&sr=1-3

15 Chapter Overview

This book examines the many important risks that we, as physicians, face daily in the practice of medicine. You may not think of life insurance, sexual harassment, Medicare fraud, marital divorce, and privacy issues as part of a risk management plan, but they are. Dr. Marcinko has written a book that provides an initial reference point for these diverse issues.

Each of the 15 chapters covers a single area, providing a broad overview as well as specific information and recommendations. This book addresses the personal, professional and business risks physicians face on a daily basis.

Personal Insurance Matters

The personal side of insurance is first, beginning with a discussion on insuring the doctor’s life. The chapter explains the various types of policies available, as well as various permutations and combinations of policy provisions. It briefly discusses both health insurance and long-term care insurance. It includes the critical features to look for in selecting a long-term care policy for yourself and the necessary criteria for successfully filing a claim under such a policy.

Practice Insurance Matters

Many orthopaedic practices are also small businesses, so property insurance and the business uses of life insurance, such as in buy-out and succession planning, are covered. The author reviews the use of restrictive covenants and employment contracts, providing examples of what works and what does not. One of the questions this chapter addresses is the difference in applicability between a restrictive covenant with regard to a departing employed physician and a restrictive covenant included in the sale of a medical practice.

Compliance Topics and Medical Workplace Regulations

Recent actions by the Department of Justice [DOJ] and activities of the Office of the Inspector General [OIG] regarding Medicare have focused attention on compliance issues. The text provides a good overview on medical documentation and healthcare compliance, including a summary of record-keeping obligations.

In addition, the author includes pointers on how a medical practice can avoid running afoul of the federal False Claims Act, fraud and abuse statutes, Stark and safe harbor laws, and the “alphabet soup” of HIPAA, OSHA, and ERISA regulations. Risks involved with serving as an expert witness, doing peer review and taking call are also covered. The discussions are as timely as those sponsored by the AAOS. The chapter on medical malpractice even includes a discussion of physician self-regulation and expert witness discipline.

Sexual Harassment Issues

The section on sexual harassment explains what constitutes a hostile work environment and what the physician’s role should be in risk avoidance. Complimenting an employee’s dress or telling a slightly off-color joke may seem innocent enough, but not if they meet the two criteria that determine offensive behavior and can lead to a lawsuit. Violence in the workplace is discussed as it relates to patients and employees, both as perpetrators and as victims. The author recommends that every orthopaedic practice have a policy and a plan in place to deal with these issues should they arise.

Malpractice Liability and Going to Court

One-quarter of the book is devoted to medical liability risks. Although the discussion of the medical liability crisis might be a bit dated and only too familiar to many readers, the section on the anatomy and procedures of a medical liability trial and the physician defendant’s role in that process is excellent. From subpoena to verdict, the process is laid out. Written by a malpractice attorney who is also a physician, the chapter provides solid advice on how to respond to the subpoena, secure the medical record [make an exact copy and seal it], and find personal counsel.

Pre-Nuptial Agreements, Divorce and Asset Protection

The financial risks of divorce are rarely covered in books geared to medical professionals, but this text examines them in detail. It also discusses prenuptial agreements and the special circumstances surrounding older divorcing medical professionals. Final chapters cover asset protection principles and how to select insurance and financial advisers who specialize in serving medical professionals.

Recommended Reading

Each chapter is authored by an expert in that particular field, but the text has a uniform consistency and approach, listing basic principles and citing specific examples to illustrate the issues involved. Ample references are provided, including written texts and articles, case law, and Internet Web sites. The table of contents is functional, and the index is well-organized for quick reference.

Insurance and Risk Management Strategies for Physicians and Advisors[Jones and Bartlett Publishers, Sudbury, Mass] is a comprehensive examination of risk management strategies. It does not provide specific legal or financial advice, but it does provide a background in many areas germane to the practical aspects of maintaining a medical practice in this millennium. Although not a stand-alone text, it gives the reader the vocabulary and information necessary to take many of these issues to the next level.


“This book is recommended reading for those about to enter the practice of medicine; those already in practice will find it a helpful reference when seeking resources on a particular issue”.


My wife tells me that because it also addresses the personal and emotional issues affecting physicians’ lives, it is suitable for spouses as well.

Note: Murray J. Goodman, MD, is a member of the Medical Liability Committee. He can be reached at mj-goodman@comcast.net June 2008 AAOS Now http://www.aaos.org/news/aaosnow/jun08/managing2.asp

From the article of the same title AAOS Now (06/08) Goodman, Murray J.



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7 Responses

  1. Medical Malpractice and Digital Forensics

    Unfortunately, there may come a time when it appears that medical office notes that are computer-generated become suspect as written after a malpractice law suit is filed. In these cases, the suspect computer hard-drive may be examined to determine when the notes were generated. Increasingly, hard drives are being subpoenaed as part of discovery proceedings in malpractice cases.

    Additionally, when Medicare fraud is suspected, the FBI may gets involved for this type of forensic examination. Most practitioners are not aware that every addition of deletion to a computer leaves a time stamp stored in a hidden file in the computer.

    Companies such as SunBlock Systems of McLean, VA specialize in this type of examination. According to their website, more than 90% of the world’s information is created and stored in electronic format. While the digital age makes for efficient business, it also presents major challenges in preserving, protecting, and managing electronic data and intellectual property. Most companies need experienced professionals to help meet the challenges they face in performing daily business operations. And, when companies need to conduct internal investigations — especially those involving litigation — discovering and maintaining evidence becomes paramount.

    Link: http://www.sunblocksystems.com

    Yet, when litigators are asked if their clients have an established practice for handling electronic discovery requests, more than 80% say no.

    Source: Referred by a concerned reader.


  2. Enjoyed this post. I hope you will read my post on OSHA at the doctor’s office (the bluegrass way).

    Dr. Thomas Bibey


  3. The Medical Testing Epidemic

    The danger of too many medical tests as healthcare goes hi-tech.


    Beware malpractice phobia.



  4. Medicare Intensifying Documentation Reviews Before Payment

    The federal government has been making moves to open up more physician decision-making to review by both officials and the public. Pre-payment claims reviews, sunshine requirements, and doctor report cards are some examples of recent policy changes designed to put more checks on physicians, whose decisions have a sizable impact on health spending and quality.

    Pre-payment review is not a new concept to physicians, but Florida’s Medicare contractor is taking the practice to new heights. Officials say the move will cut down on claims mistakes and other errors that lead to improper pay. Physicians worry that they’ll be told after the fact that surgeries they performed were deemed medically unnecessary — and that they owe Medicare any fees they’ve already received.

    Source: AM News [1/30/12]


  5. Full Disclosure Appears to Lower Malpractice Legal Costs

    Preliminary data is starting to come in from an Agency for Healthcare Research and Quality-funded $3 million demonstration project in which the University of Illinois Medical Center at Chicago’s “Seven Pillars” program has been expanded to 10 other hospitals. And it shows that the program’s promotion of full disclosure of injuries and errors, apologizing and offering compensation appears to be having a positive effect on legal costs.

    One of the foundations for disclosure-apology-offer programs is the research into why people sue their doctors. This was conducted by Dr. Gerald Hickson and James Pichert at Vanderbilt University Medical Centers’ Center for Patient and Professional Advocacy. “Families want answers,” Hickson says. “If something bad happens or something unexpected happens to your loved ones or yourself, you want to know why.”

    The traditional stonewalling that occurs with the deny-and-defend response to a medical injury often triggers malpractice suits, Hickson’s and Pichert’s research found, because suing was the only way to get answers to their questions. “You want an expression of human concern as an apology—not laying blame,” Hickson says. “You also want an explanation. How did this occur? What does it mean to me? How am I going to respond to this ongoing threat to my health?”

    Source: Andis Robeznieks, Modern Healthcare [2/2/13]


  6. Medical Malpractice Premiums Drop for 6th Straight Year

    Judging by three representative specialties, physicians in 2013 are once again experiencing relief on malpractice insurance premiums. Collective rates for obstetrician-gynecologists, internists, and general surgeons fell on average for the sixth straight year in 2013, according to an annual premium survey released this week by Medical Liability Monitor (MLM). The decrease is 1.9%, a tad more than the 1.7% decline in 2012.

    “Although the 2013 Medical Liability Monitor [survey] suggests decreases in premiums have become more common than premium increases, they pale in comparison to the magnitude of the increases experienced during the most recent liability crisis,” said Ardis Dee Hoven, president of the AMA.

    Source: Robert Lowes, Medscapre News [10/10/13]



  7. Prenuptial Pitfalls for Advisors to Avoid

    Prenups can help HNW clients and heirs in case of divorce or death, but advisors must avoid offending these spouses-to-be.




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