ACA poses vicarious liability risks


The Affordable Care Act (ACA) has the potential to open up medical professionals to more claims based on vicarious liability. That is the view of Molly Farrell, vice president of operations, MGIS Underwriting Managers, speaking at a recent panel presentation at Crittenden Medical Insurance Conference.

“The need to manage more non-physician providers to handle a large influx of new patients – many with untested expectations of the healthcare system – will present new undefined risks. We have to get ready and ensure we have programs to address the new healthcare reality,” she said.

Farrell was speaking as one of a panel of industry experts from The MGIS Companies and top malpractice defense law firms who explored looming emerging risk realities under the ACA in a round table discussion at the Crittenden Medical Insurance Conference.

The presentation was moderated by Kim Stanger of Holland and Hart, LLC law firm of Boise and led by Margaret “Peggy” Holm, shareholder with Bonne Bridges Mueller O’Keefe & Nichols of Orange County, California. Panelists included Farrell and Elke Kirsten-Brauer, EVP/chief underwriting officer, MGIS Underwriting Managers.

The presenters noted that a key issue to watch is the potential created by the ACA, as well as by plaintiff attorney interpretations of the law, to expand the number and nature of malpractice claims, specifically in the area of vicarious liability, or claims based not on what a physician providing care has done, but holding the physician and/or medical group responsible for the misconduct of others on a healthcare team.

Other key topics included the use of Standards of Care criteria in lawsuits; miscommunication and/or poor patient hand-off; the need to educate a new population of patients who may have had limited access to healthcare in the past and who may have unrealistic expectations and demands; and over-burdened systems and staff.

Other trends discussed by the panel have moved out of the “crystal ball” stage and are now showing up in the courtroom.

“The plaintiffs’ bar increasingly asserts that medical specialty board guidelines protect the public from the healthcare system,” said Holm. “That opens the door to guidelines becoming rules dictating the standard of practice and patient safety rather than relying on the skill and experience of physicians deciding what’s best for each individual patient under their care.”

ACA, Molly Farrell, MGIS Underwriting Managers, Crittenden Medical Insurance Conference