Malpractice Insurance for Chiropractors

:dropcap_open:M:dropcap_close:alpractice insurance is a relatively low investment annually, however should that lawsuit ever present itself, you will want to be sure that you’re  protected.  Use a company that you feel comfortable dealing with.  Below, you will find the five largest chiropractic insurance companies that will represent you.

chirosecureChiroSecure leads the field in coverage by being the first carrier to offer INSURANCE AUDIT COVERAGE for state programs as well as private programs ie: up to 50K Defense for any Insurance Audit – Medicare, Medicaid, Blue Cross/Blue Shield, Aetna, Cigna etc. Additionally, they are the ONLY company to offer 50K Defense Coverage for Board/HIPAA, Unlimited Sexual Misconduct, True Consent to Settle. With multiple options available, and more than 21 yrs. of experience, ChiroSecure is a leader when it comes to providing doctors with the best possible coverage at the lowest possible rates. Call 1-866-802-4476 for a FREE POLICY REVIEW—or for a QUICK QUOTE please fax your current declarations page to 1-480-657-8505.

OUM Chiropractor Program
oumSince 1983, the OUM Chiropractor Program has provided malpractice protection to chiropractors nationwide. Our extensive malpractice insurance policies offer broad protection that covers the range of professional chiropractic services you provide with your state’s defined scope of practice.  The OUM commitment to chiropractors is the same today as it was when we began: to diligently protect and defend our policyholders against malpractice claims even if charges are groundless, false or fraudulent while providing unparalleled customer service.

National Chiropractic Council (Affordable Reliable malpractice insurance)
nccThe National Chiropractic Council offers a wide range of coverage options, designed to fit your needs. If you are looking for affordable coverage, we have a program that is typically 30% less than every other program in the market. If you have a Claims Made policy, you can switch to us without losing coverage for prior acts.  We can offer an occurrence basis policy from the start or provide FREE tail coverage for Claims Made policies after only 5 years.   With the NCC programs, you will be able to customize your coverage to meet the specific needs of your practice. You can be confident with our aggressive claims handling to defend your good name.

National Chiropractic Council, 1100 W. Town & Country Road, Ste. 1400, Orange, CA  92868, (800) 622-6869, [email protected],
NCMIC Insurance Company
ncmicOver 40,000 D.C.s have turned to NCMIC for outstanding malpractice insurance and unbeatable service. Founded in 1946 by and for chiropractors, NCMIC offers a full range of financial products and insurance services to safeguard your future and to protect and grow your practice. “We Take Care of Our Own” is more than a motto – it is how NCMIC does business every day. For more information, call 1-800-769-2000, ext. 3196 or visit

Chiropractic Benefit Services 
chirobenefitservChiropractic Benefit Services (CBS) Malpractice RPG is a full-service insurance program for chiropractors owned and operated by a chiropractic family of 40 years. CBS has offered chiropractors malpractice, disability, life, business owners, commercial, auto, home and more for the last 20 years. Our objective is safeguarding and protecting chiropractors while providing you with superior client service and competitive premiums. 

Underwritten by a top “A” rated insurance carrier.  Call for quotes 1-866-851-4636 or go online for a quick quote at Phone 1-866-851-4636, Website: 

New Risks from Changing Healthcare Laws

:dropcap_open:O:dropcap_close:n March 23, 2010, President Obama signed the Patient Protection and Affordable Care Act. This law puts in place comprehensive health insurance reforms that will extend for four years and beyond. The vision and timeline seem daunting, from the 2010 inception of a new patient’s bill of rights to the 2014 goal for all Americans to have access to affordable health insurance options. The new law raises questions, such as: What will be the impact to patient care, clinical decision-making, documentation, current procedural terminology, billing and disclosure of patient records? And will there be an increase of risk in the clinical setting to reduce the cost to Medicare, Medicaid or commercial carriers? The simple answer to the second question is no, there should be no increase of risk, with the caveat that you must strictly adhere to the rules of clinical decision-making, documentation, health-record dissemination, CPT code usage and billing practices.
2013healthcarelawMost healthcare providers strive to work ethically, give high-quality patient care and submit accurate claims for payment. Take note of the word “accurate” and its meaning: free from error, precise, meticulous, faithfully representing or describing the truth. Accuracy includes using E&M codes and CMT codes appropriately, truly understanding the definition of medical necessity and routinely billing E&M codes with a CMT for each DOS. Moreover, consider whether or not you have reduced the actual face-to-face time for an E&M with a Medicare patient because Medicare does not cover this service. Ask yourself if you only document PART within the initial exam as opposed to the required elements for a new patient E&M. And consider whether or not you charge patients over and above the normal and customary fees for an in-network provider service until they meet their deductible. Finally, ask yourself the following questions: Do you have a lower cash fee verses an insurance fee for the same service? Are you upcoding to meet your overhead needs? Have you waived deductibles or adopted a NOPE standard in your office?
The five most important laws that apply to all doctors are the False Claims Act (FCA), the Anti-Kickback Statute, the Stark Law (physician self-referral law), the Social Security Act and the U.S. Criminal Code. As stated in the Social Security Act, Section 1862 (a)(1)(A): “No payment will be made…for items or services…not reasonable and necessary for the diagnosis or treatment of an injury or illness or to improve the functioning of a malformed body member.” Medically necessary care is when the patient has a health problem or condition necessitating treatment, and the services rendered must have a direct therapeutic relationship to the patient’s condition and provide reasonable expectation of recovery or improvement of function. A patient’s condition is considered chronic when it is not expected to significantly improve or be resolved with treatment.
The changing healthcare laws will impact none of the above requirements, criteria, definitions or elements. However, the Department of Health and Human Services moved forward on January 17, 2013, and increased the privacy, security and protections for patient health records under HIPPA: “The final omnibus rule greatly enhances a patient’s privacy protections, provides individuals new rights to their health information, and strengthens the government’s ability to enforce the law.” ( NEWS RELEASE January 17th, 2013) This enhancement impacts your office procedures regarding compliance with HIPPA and the HITECH Act. Risks associated with the changing healthcare laws must be addressed in the following areas: When to bill and when not to, and what entities can have access to patient health records and when and why they cannot. It is time for a new document in your standard patient record format: A “Restriction on Uses and Disclosure” form.
Most healthcare facilities utilize initial intake forms, including a signed statement that allows the healthcare entity to seek payment from an outside payer. However, under the expanded regulation, patients have the right to choose to pay all fees out of their own pocket and by their signature restrict disclosure of their health information. This right holds true for a patient with in-network benefits. In the event your staff is not clearly educated on the impact of this restriction, take note that a generated and submitted bill to an outside payer constitutes unauthorized disclosure of a patient’s health information. The contract you sign as an in-network provider is mute against this federal law. Patients who choose to pay full price (as opposed to normal and customary in-network fees) and sign a restricted disclosure of their health information effectively stop the billing process to an outside agency.
Furthermore, with the implementation of ICD-10, there will be significant changes to the way you document. ICD-10 allows and results in a greater tracking of services, and accuracy will be essential in documentation and billing. According to the Centers for Disease Control and Prevention, “Whereas ICD-9 employs three- to five-digit codes, ICD-10 codes use three to seven digits.” (ICD-10-CM Official Guidelines for Coding and Reporting 2012).
It is a dynamic time to be in the healthcare industry. Accurate and complete patient records and documentation of all services and consents is an essential component to minimize clinical risk. Knowledge combined with management of changed healthcare laws for HIPPA and the HITECH ACT will be imperative for complete compliance in a clinical setting. Accusations of non-compliance of HIPPA or the HITECH Act as well as accusations of improper, unskilled, or negligent treatment of a patient can be clearly defended with precise and meticulous documentation. It is important to keep in the forefront of your mind that if you did not document it, it is the same as if you did not do it.
Healthcare laws will continue to expand both at the federal and state levels. Legal defense for malpractice as well as board and audit defense have become a growing concern for many chiropractors. Establishing and following a compliance program will help avoid errors and ensure that you are submitting true and accurate documentation and billing. If you are considering a particular billing practice or business-operating procedure, consult ChiroSecure. ChiroSecure is committed to providing the exceptional, quality protection you need by offering the most comprehensive coverage available at the most competitive rates. ChiroSecure will assist you with your compliance goals by providing education and risk-management tools to support healthcare industry demands. It takes an educated and compassionate team to support the goals of a compliant chiropractic office. Count ChiroSecure as one of the most active and supportive members of your team.

2012 Malpractice Coverage Leaves You in Grave Peril Part 2

:dropcap_open:I:dropcap_close:n part 1 of this 2 part series, published in the April, 2012 edition of The American Chiropractor, I reported the exposure that IME and peer review doctors have in states with no “duty of care.” I reported, “While an ‘independent and peer review examination’ comes in many forms, from pre-employment to record review or at the request of an insurer or other third party payer, courts, both at the state and federal levels, have a dichotomy in opinion. Either the courts feel that the doctor is responsible for his/her actions in the doctor-patient encounter, no matter how limited, or they do not. The legal status is called “duty of care” and it is incumbent upon every IME and peer review doctor to understand his/her relationship of this ‘limited doctor-patient relationship’  to his/her duty of care, or lack thereof, and the grave pitfalls he/she faces as a result of that relationship” (Studin, 2012, p. 30).
malpracticecoverage2012There are many states, as reported previously, that have ruled the doctor has no duty of care towards the patient and has a limited doctor-patient relationship. However, in actuality, those doctors, although not in a traditional role with patients, do have a role and legal and financial exposure. In many states, the courts have ruled that there is a doctor-patient relationship and in spite of the language written by the IME doctor that historically says, “The above captioned claimant is examined in accordance with the restrictive rules concerning an independent medical evaluation. Prior to the evaluation, it was explained to the examinee that this appointment was for the purpose of evaluation only and not for care, treatment or consultation, and therefore, no doctor-patient relationship would result,” it does not exonerate the doctor from his/her court-determined duty of care to the patient.  
The Appeals Court of Massachusetts stated, “The Appeals Court, Laurence, J., held that: (1) applicant’s claims that psychiatrist was negligent in his examination and diagnosis of applicant were within medical malpractice tribunal’s jurisdiction, and (2) applicant’s offer of proof to tribunal presented litigable issue as to psychiatrist’s liability. (Lambly v. Kameny, 1997).
The Appellate Court of New York found, “petitioner’s examination of the patients referred to him because he was a licensed professional practicing dentistry, and his issuance of written reports acting in that capacity which were intended to influence treatment authorization decisions by the referring companies pertaining to the TMJ claims of those patients, to be the type of professional activity falling within the scope of the review authority of respondents who are charged with regulating the professions in this State” (Kirschner v. Mills, 2000).
The Supreme Court of New Jersey found, “I join the Court’s opinion. I interpret its holding as imposing a duty on the physician to examine the individual competently, within the parameters of the third-party referral, and to disclose to that examinee any potentially serious condition revealed by the examination” (Reed v. Bojarsky, 2001).
The Maryland Court of Appeals found, “Physician may incur tort obligation which is nonconsensual and independent of contract under general rule that one who assumes to act, even though gratuitously, may thereafter become subject to duty of acting carefully, if he acts at all” (Joseph v. District of Columbia Board of Medicine, 1991).
The above are a sampling of rulings that have found that in an IME or peer review examination, there exists a “duty of care” in that limited doctor-patient relationship and those words written by the examining doctor have far less truth and raise questions that can only be answered by the courts. Is that a proper or misleading statement to the patient based upon the previous mid- and high-level court rulings in various states?
The next issue of equal importance is one of risk. In part 1, I described the exposure that each IME and peer review doctor has in this limited role.  The malpractice carriers NCMIC, OUM, ChiroFutures, Chiro Secure, CNA and the National Chiropractic Council all handle IME and peer review coverage slightly differently, although with similar coverage. From the best coverage to the worst in the country regarding peer review and IME defense, the most coverage you will get is $50,000. However, understand what is being covered. The most coverage gives you $50,000 aggregate for legal defense only, while the broadest language gives you $25,000 for legal defense and damages. The worst coverage/language covers nothing.  
In those states where a “duty of care” has been determined, the coverage remains the same from the malpractice carriers, from zero to $25,000 per case. In this litigious society, that equates to no coverage based upon the cost of legal defense and potential exposure to verdicts and settlements. However, those doctors also now have to answer to the standards of their licenses and licensure board investigations. Now, they cannot be insulated against malpractice cases.  With rulings that there is a “duty of care,” the courts give the malpractice carriers the right to say these are practice issues, but because they are IME or peer review cases, policy parameters, as previously mentioned, offer little to NO malpractice coverage, once again leaving the IME and peer review doctors to be the real risk takers and insulating the carriers from significant losses. 
The doctors in states where the courts have found a “duty of care” in IME and peer review examinations have significant more exposure with: 
  1. Minimal to no coverage for examinations with duty of care 
  2. Licensure issues 
  3. Exposure to malpractice as a result of court rulings with no coverage issues…and all for relatively little in return for your assuming all of the risk vs. rewards (fees for IMEs and peer reviews.) 
  1. Studin, M. (2012 April) IME & Peer Review Doctors: 2012 Malpractice Coverage Leaves You in Grave Peril, Part 1, The American Chiropractor, 34 (4): 30, 32, 34-35.
  2. Mark Lambley v. Stuart Kamney, 43 Mass.App.Ct. 277, 682 N.E.2d 907 (Massachusetts 1997).
  3. Kirschner v. Mills, 274 A.D.2d 786 (N.Y. A.D. 3rd Dept. 2000).
  4. Reed v. Bojarsky, 764 A.2d 433 (New Jersey 2001).
  5. Joseph v. District of Columbia Bd. of Medicine, 587 A.2d 1085 (D.C. 1991).

Informed Consent Emerging as a New Basic Element in Patient Communications

:dropcap_open:E:dropcap_close:ffective risk management requires every chiropractic practitioner’s daily attention. Consistent attention to detail and regular examination and re-evaluation of the risk-management basics, and now an up-to-date knowledge of and compliance with your state’s official rules are essential to your practice’s protection and the practitioner’s peace of mind. It is vital, on key risk management issues and procedures, that you never let your guard down and do not let staff members drop the ball or cut corners on record keeping and confidentiality issues, and, on the doctor’s  “MUST DO” list, make sure that informed consent documents and procedures are always in place and in play.
informedconsentAt the very outset of this discussion, it is vitally important that doctors understand that the general “terms of acceptance” document that many practitioners have used in their offices for many years is not the kind of informed consent document that is becoming the standard obligation for DCs prior to starting care. A “terms of acceptance” is an educational document. It is important but not sufficient to address the permission dimension that defines informed consent. Informed consent activities are becoming increasingly specific. 
These issues now have a special context for doctors of chiropractic in California, where, on October 7, 2011, a new regulation went into effect that requires that: 
A licensed doctor of chiropractic shall verbally and in writing inform each patient of the material risks of proposed care. “Material” shall be defined as a procedure inherently involving known risk of serious bodily harm. The chiropractor shall obtain the patient’s written informed consent prior to initiating clinical care. The signed written consent shall become part of the patient’s record.1  
To make certain that California practitioners understand the mandatory nature of this new requirement, the same regulation states:  
A violation of this section constitutes unprofessional conduct and may subject the licensee to disciplinary action.
The California chiropractic board offered a reasonable rationale for this new rule in which they cite a growing national trend towards greater clarity and specificity in informed consent for patients of all licensed health care providers. The new California regulation does not specify the exact “manner in which written notice shall be provided to patients” but it does seem to encourage the use of a standardized form which they advised might be obtained from a doctor’s attorney, malpractice insurance carrier or state or national association. Some insurance companies have been providing policy holders with such a form for many years, in recognition of the wisdom of having such consent on-file for every patient.  
Clearly, this is now the law for California practitioners and we are advising all policyholders in that state to be in immediate and ongoing compliance. We are also alerting DCs in other states to expect similar rules to emerge in their respective jurisdictions, since California has always been a regulatory trend-setter and because nationwide pressures all but guarantee that informed consent procedures will become increasingly standardized and specific among the states.  
In recent months other issues surrounding “informed consent” have emerged in a variety of situations that make it well worth your while as a busy practitioner, whether in California or elsewhere, to stop for a moment and seriously consider this question. At the top of the list of nagging issues are the activities of those groups and individuals who continue to promote stroke fears among the public. The impressive safety record of chiropractic, indeed the most impressive safety record of any health care profession, appears to mean very little to those organizations and individuals who have taken on the role of professional critics of our profession. Some of the anti-chiropractic organizations promoting the danger of stroke from upper cervical adjustments have hit upon the informed consent issue as a means to showcase their issues.  
Research and actuarial records, and the failure to make anything but a casual or coincidental link between stroke and chiropractic services, will not deter those interests. Their goal is not to deal with facts or real risks but to hurt the chiropractic profession. Sadly, we have no choice but to deal with the backwash of their campaign, regardless of their destructive intent and deceitful ways and means they are employing. Our job is to do what is right and what makes sense for both the patient and the practitioner.  
Informed consent has become the subject of growing attention as an element in risk management procedures because the lack of it in malpractice cases has become a common and effective claim. Clever and aggressive lawyers have hit upon the informed consent issue as a means to strengthen otherwise weak claims of clinical misjudgment or injury, based on a number of landmark court decisions and trends in other professions.

In a landmark 2005 Wisconsin case, the state court found:

 “Chiropractors, like medical doctors, are health care professionals involved in the application of procedures and treatments to the human body. We see no reason why the scope of an individual’s right to be informed of the risk inherent in bodily intrusions via chiropractic treatment and procedures should be any different from his right to be informed of the risk inherent in bodily intrusions in medical treatment and procedures.”2
Thus, the fact that chiropractic is non-invasive provides no additional margin on demands for informed consent according to the Wisconsin court, a position reaffirmed by an often cited 1999 New Jersey Supreme Court decision, which similarly held that: “…informed consent applies to both invasive and noninvasive procedures, holding that physicians must inform patients of the possible risks and benefits of all “medically reasonable” treatment options – including those he or she does not recommend.”3 If that is not complicated enough, courts are regularly finding that during the course of care, patients must be updated throughout in terms of relative risks and alternate care choices, and that not telling a patient about other care pathways and their risks becomes an issue in itself.4 
In fact, actions based solely or largely on the lack of formal and written informed consent have emerged as a malpractice growth industry, even though such charges may have nothing to do with whether a chiropractor has actually committed an act or acts of malpractice as it has historically been understood.  
The message here is clear:

Be consistent and proactive in obtaining both written and verbal informed consent from every patient, in advance of both examination and the active delivery of care. Yes, get informed consent prior to care to cover your examination procedures, as well as in advance of delivering chiropractic adjustive care. 

Informed consent starts with a standardized form, as encouraged by the California board in their new regulatory explanation. Your malpractice carrier is, indeed, always a good place to obtain a model form, followed by your state or provincial association, with, as is almost always the case, close attention paid to any direction available from your state or provincial regulatory board. On this form, the key information needed will always include the patient’s name, address and, of extreme importance, the date.  
:dropcap_open:Different jurisdictions have different specifics on informed consent.:quoteleft_close:
The exact nature of the form’s contents should reflect the requirements in your jurisdiction. This is why a visit to the regulatory board’s website or information from your local association is so vital. Different jurisdictions have different specifics on informed consent. You will need to comply with state and provincial directions as to the degree of specificity regarding risks inherent in the procedures you are about to apply.  
In recent months, as more and more technology and especially mechanical devices are incorporated into chiropractic practice (from mechanical adjusting devices to spinal decompression units) it is becoming important to obtain separate informed consent forms for each new level of intervention applied by your clinic. A form for the adjustment, a form for traction, a form for mechanical spinal decompression, and a form for any procedure that can be argued to be separate and different, and not arguably covered by a general form, will serve you well. Remember also that the absence of such forms becomes a problem in and of itself.
In addition to the form itself, most legal advisors will encourage that a note stating that the form was signed and that a verbal exchange took place be added to the patient’s file, with you as the provider (not a member of the staff) highlighting the contents of the form. Indeed, some malpractice experts argue that the verbal exchange is the essence of informed consent, where the patient has the opportunity to question the doctor’s choice of procedures, and that without the verbal component, the written form loses much of its meaning. 
Rather than look at the informed consent exercise as a burden, practitioners should look at the interaction with the patient on relative risk and informed consent as an opportunity to orient them to what they can expect from the adjustment process, especially if they are first-time patients. While most patients feel an immediate sense of relief from the adjustment, a frank discussion on possible temporary or short-term discomfort from a first adjustment, possible stiffness, etc., helps patients keep things in a much better and more realistic perspective, and places you as the doctor in a position of both credibility with the patient as well as defensibility should any unforeseen issue arise. Such frank and open dialogue can only strengthen the doctor-patient relationship and enhance the positive nature of the patient’s chiropractic experience.
In today’s litigation-happy (or many might argue litigation-crazy) society, even the best, most conscientious and responsible doctors of chiropractic, applying the highest standards and most established procedures and protocols, can still be named in a malpractice claim. When it comes to informed consent, a whole new dimension of malpractice reasoning comes into play, where patients and their attorneys regularly argue that if a patient was fully informed of all risks and possible negative outcomes, then they may have decided not to receive the care and would not, as a result, have been injured. The proactive doctor of chiropractic will respond accordingly, with sound and well-researched forms and procedures, all consistently applied and included in the patient’s file. It pays to do the work and, consequently, minimize the risk.
And, as every doctor of chiropractic should know by now, a reliable malpractice insurance carrier is your best partner in protecting your practice and yourself from malpractice claims. Make sure that you have the coverage you need, to help implement risk management procedures that will provide the best possible firewall to jeopardy.  
Shop around, compare and see what you find. The result will be both excellent coverage and peace of mind. You deserve both.  
  1. California Code of Regulations, Title 16, Div. 4, Article 2, Section 319.1
  2. Hanumans v. Boyson, No. 2003AP1527, 2005 WL 1522624 (Wis. June 29, 2005).
  3. Matthies v. Mastromonaco, 160 N.J. 26, 37, 733 A.2d 456, 462 (1999). 
  4. Schreiber v. Physicians Insurance Company of Wisconsin, 223 Wis.2d 417, 588 N.W.2d 26 (1999).

IME & Peer Review Doctors: 2012 Malpractice Coverage Leaves You in Grave Peril Part 1

:dropcap_open:I:dropcap_close:ndependent medical examiners (IMEs) and peer review doctors all have one thing in common: they are in the business for money, as their level of expertise and professional training offer nothing to the “clients” they evaluate. The purpose of their job is to render a diagnosis and formulate an opinion on care for today, tomorrow and often care for 1 year ago. They do nothing to improve the quality of lives of the clients they see, nor make any recommendations other than comments on the treatment plans of the treating doctors. That is not a bad thing in itself as, in a perfect world, it is a vital service whose primary purpose is to protect stockholders, employers, municipalities, federal insurers and any other entity that is at risk when insuring the public. Without this vital component, a potential imbalance could occur with a small fraction of treating doctors who are unscrupulous. 
2012malpracticecoveragept1While it is a given that IMEs and peer review doctors have entered this business purely for money, many have gotten a “free ride” by being given liberties in the eyes of the law. While an “independent and peer review examination” comes in many forms, from pre-employment to record review or at the request of an insurer or other third party payer, courts, both at the state and federal levels, have a dichotomy in opinion. Either the courts feel that the doctor is responsible for his/her actions in the doctor-patient encounter, no matter how limited, or they do not. The legal status is called “duty of care” and it is incumbent upon every IME and peer review doctor to understand the relationship of this “limited doctor-patient relationship” to his/her duty of care, or lack thereof, and the grave pitfalls he/she faces as a result of that relationship. 
IME and peer review doctors: In order to understand what you have given up in order to earn money from your relationship with the insurance and IME/peer review companies, you have to understand the role, responsibilities and the real risk-takers in your relationships. You also have to fully understand what coverage your malpractice carrier has with you and who the real risk-taker is in that relationship. There are a lot of players in this game and you must understand that the insurance carriers are not stupid; they do not need your money, you need theirs, so you often do not read the “fine print” or understand the grave peril they have put you in.
Courts in many states such as Alaska, Missouri, and Colorado have ruled that IMEs and peer review doctors do not have doctor-patient relationships as a result of the “limited doctor-patient relationship” of insurance and employment examination and, therefore, have no legal “duty of care” towards the patients being examined. As a result, these states have ruled that no malpractice claims will be considered because there are no doctor-patient relationships. However, this does not limit victims of examination injuries, withholding of vital information, misreporting facts, underreporting facts, loss of vital care, wrongful deaths or any other negative sequellae of the IME examinations or peer review reports from taking legal action against an IME or peer review doctor for negligence, slander, defamation and a myriad of other reasons.
IME doctors often place the following in their reports: “The above captioned claimant is examined in accordance with the restrictive rules concerning an independent medical evaluation. Prior to the evaluation, it was explained to the examinee that this appointment was for the purpose of evaluation only and not for care, treatment or consultation, and therefore, no doctor-patient relationship would result.” Although this is a correct and factual statement, it does not insulate the IMEs and peer review doctors from civil litigation beyond the malpractice umbrella. 
Nationally, the courts are full of cases brought against IME and peer review doctors in civil actions for many of the issues listed above and the question is, “Who is the risk taker?” In other words, who is going to pay for the lawyers and possible settlements or verdicts in those cases, win or lose?
I have read and communicated with many chiropractic malpractice carriers in the United States. The question I asked them was, “In states where there is no duty of care and no malpractice claims as ruled by the courts, are you going to cover your insured?”
NCMIC responded with a resounding yes. They claim that they stand behind their insured and provide full coverage, no matter the incident. Upon reading the language in their policy, it states the following as of 2012:
1. Legal fees and damages incurred in the defense or investigation of a claim or suit that arises out of your chiropractic utilization review services, including the rendering of an opinion on the adequacy, necessity or reasonableness of care furnished by another chiropractor based on the review of the patient’s records without a physical examination. Supplementary payments for legal fees and damages under this section will be limited to $25,000 per occurrence and $50,000 aggregate for all actions arising during the policy period.
2. Legal fees and damages incurred in the defense or investigation of a claim or suit that arises out of your peer review services, including services as a member of a formal accreditation, standards review or other professional board or committee related only to chiropractic. Peer review means the evaluation of the professional services rendered by another chiropractor for the purpose of determining the qualifications and/or the competency of the chiropractor. Supplementary payments for legal fees and damages under this section will be limited to $25,000 per occurrence and $50,000 aggregate for all actions arising during the policy period.
OUM has similar parameters as NCMIC and states:
1. Legal fees and damages that arise out of the Named Insured’s chiropractic utilization review services, including the rendering of an opinion on the adequacy, necessity or reasonableness of care furnished by another chiropractor based on the review of the patient’s records without a physical examination. The supplementary benefit under this paragraph (2) for legal fees and damages is limited to $25,000 per claim and $50,000 aggregate;
2. Legal fees and damages that arise out of the Named Insured’s peer review services, including services as a member of a formal accreditation, standards review or other professional board or committee related only to chiropractic. Peer review means the evaluation of the professional services rendered by another chiropractor for the purpose of determining the qualifications and/or the competency of the chiropractor. The supplementary benefit under this paragraph (3) for legal fees and damages is limited to $25,000 per claim and $50,000 aggregate.
Chiro Futures state within their policy:
We will pay for legal expenses incurred by us to investigate and defend a legal action brought against you arising out of your service on a peer review committee, utilization review committee, or similar committee associated with a Health Maintenance Organization (HMO) or Independent Practice Association (IPA). 
Chiro Secure has no contractual provision regarding the defense or coverage of IMEs or peer reviews performed by the policy holder. They state:
Professional services means services which are within the scope of practice of a chiropractor in the state in which the chiropractor is licensed. Professional services include your services as an educator either in any state or country or as a member of a formal accreditation, standards review, or similar professional board or committee, including as a director or officer of such board or committee. 
Nowhere does it say “peer review panel” or that you are covered as in independent peer reviewer.  You are only protected if you are part of a committee within an organization, thereby leaving you exposed to no coverage for performing peer reviews based upon the language in the contract. This ambiguity in the agreement, as interpreted by legal experts, leaves this open to interpretation and resultant discretionary coverage. In addition, both Chiro Futures and Chiro Secure explained to me verbally that they cover both peer review doctors’ and IMEs’ defenses and had “discretionary coverage” as determined by their underwriters and make their decisions on a “case-by-case” basis. There is no contractual language to cover either and the old adage should be heeded, “If it isn’t in writing, it doesn’t exist.” In addition, if they do cover you, Chiro Futures will only cover your defense of peer reviews with no provisions for IMEs and both have no contractual language of discretionary coverage. 
CNA states in their policy
Professional services do not include an Insured’s participation in the third party approval or denial of chiropractic or other healthcare benefits. Therefore, CNA offers no protection for the IME and peer review doctor.
The National Chiropractic Council Insurer does not consider IME or peer review activities within their policy. Therefore, the definition of the practice of chiropractic falls under the prevue of the courts. Should the courts rule in your state that there is no “duty of care,” the carrier has the legal standing to not cover their insured. 
From the best coverage to the worst in the country regarding peer review and IME defense, the most coverage you will get is $50,000. However, understand what is being covered. The broadest language gives you $25,000 for legal defense and damages, while the most coverage gives you $50,000 aggregate for legal defense only. The worst language covers nothing. Should you be sued for any of the scenarios listed above as a peer review or IME doctor, your malpractice coverage is not going to cover you as it would with one of your treating patients because there is not a “duty of care” in that limited doctor-patient relationship. That relationship has already been decided by the courts and, therefore, the action brought against you will not be considered malpractice. Your malpractice carriers will possibly provide, depending upon your policy, legal defense up to $50,000 aggregate with $25,000 per claim or complete coverage up to $25,000. 
What Is Your Real Risk? 
If you ever had to defend yourself in a lawsuit, legal fees often and usually go well beyond both those limits depending upon the merits of the case and the resolve of the person suing you. Who is going to pay for the balance of the legal defense beyond the parameters of your policy? Should you be found guilty, who is going to pay the settlement or jury award that can reach into the millions with health care issues? The answer to both: you are…as your carrier has shifted the burden of coverage to you through the clear language of the contract.
Your malpractice company is not benevolent; they are a business answering to stockholders and CEOs seeking annual $20,000,000+ bonuses. You are not going to get indemnified from the insurance carriers or the IME companies that hire you as they, too, are seeking significant profits. It comes down to who is the risk taker and who is the profit-maker. You, the IME or peer review provider, are accepting very modest fees, while assuming million dollar risks and being left as the risk taker and self-insured. 
Facts for those states with no duty of care:
  1. IME and peer review examinations have a limited doctor-patient relationship and no duty of care.
  2. As a result, the courts have ruled that this does not fall under malpractice. Malpractice carriers have no obligation to cover you for non-malpractice issues.
  3. Malpractice carriers will cover you for legal defense ranging from $0 – $25,000 per case.
  4. Malpractice carriers cover $0 for awards or settlements against you.
  5. Insurance companies and IME companies will cover $0.
  6. You have to pay any excess legal fees and all awards or settlements against you. Personally, that can be millions.
Is it worth it?  

RAC Audits: Preparing for Medicare’s Hired Guns

gavel2:dropcap_open:I:dropcap_close:f you haven’t heard, Medicare is utilizing third parties, otherwise known as Recovery Audit Contractors (“RACs”), to identify services provided by doctors that do not meet the many documentation requirements now required by Medicare for reimbursement. For instance, we have seen patient’s visit denied based on lack of qualitative measures of patient improvement in plans of care or failure to identify a medical reason for a visit, both convictions leading to a determination of failure to provide medical necessity for care. Conveniently, RACs are reimbursed a percentage of the reimbursement recouped from the services they identify as unsubstantiated for Medicare reimbursement and, therefore, determinations of unsubstantiated care are rampant.

By all accounts, the Recovery Audit Contractor review process is not a fair process. Given a big enough haystack, you are bound to find some needles. Records are requested and, thereafter, dissected and recalibrated in ways that rattle the best of documenters. Of late, the results we have seen presented by our clients is that the RACs are looking to establish that the majority of chiropractic medically necessary visits submitted for reimbursement are, in fact, maintenance visits and, therefore, not reimbursable by Medicare.

You may be reading this and thinking that, if you are not the target of this type of audit as of yet, there is still time to take “preventative measures.”

True. However, the RAC is authorized to look back at your records for 3 years. And, as attorneys, we must inform you that any intentional alterations to medical records after the fact may be construed as fraudulent behavior. We’re serious. (Of course, this reference is not meant to stop you from amending a record appropriately, which would include adding a new entry that is signed and dated contemporaneously in an old visit.)

:quoteright_open:The RAC is authorized to look back at your records for 3 years.:quoteright_close:

What to do if you are contacted by a Medicare RAC:

First things first; if you are targeted by Medicare, do not panic. There are a number of defenses available to substantiate documentation practices; for instance, as the treating doctor you are, of course, in the best position to diagnose and treat the patient, which warrants a certain amount of deference from the get-go that is typically not acknowledged in an initial RAC review.

Secondly, be advised that the Medicare system has in place a number of appeals processes, of which we highly recommend availing yourself. It has been our experience that, in the majority of instances more favorable determinations have been levied during the appeals process than as a result of an initial review.

Finally, you should not go through this process alone. Experienced healthcare counsel should be retained at the start of the audit process to ensure your rights are protected and potential damages are mitigated. Typically, malpractice carriers cover the cost of legal defense work in RAC audits and the doctor does not incur additional expenses.

While the audit process may seem daunting, it is important to keep in perspective what the process is about. Every claim you send to Medicare is a bill to the federal government that every tax payor, yourself included, is responsible for. Not one of us has an expectation of going to a store and not being able to inspect what we are purchasing. So, it’s not unfathomable to understand Medicare’s perspective with the RAC audits—Medicare wants to know that the services for its beneficiaries that it is paying for are quality goods. However, Medicare has apparently adopted the mantra that the customer is always right and similar to Winona at Barney’s, Medicare no longer wants to pay for its goods. Bottom line, if no one calls security and the store detectors are turned off, Medicare is walking away with an arm load of goodies, which is why, if you are audited, it’s important to question any negative results and stand up for your right to be reimbursed for medically necessary services rendered. This may be easy to forget in the midst of an audit, but you, as the treating doctor, are the only person in charge of care, and you are entitled to reimbursement for all appropriately rendered and substantiated care.


Written by Jennifer Kirschenbaum, Esq. and Rachel Weinrib, Esq ([email protected]).

The Professional Liability Risk Dynamic


:dropcap_open:T:dropcap_close:he doctor of chiropractic in active practice has a lot to be concerned about and a host of issues and administrative and management steps that must be covered to make certain that all aspects of the practice are properly addressed on a timely basis. From taxes to your license to practice, these issues are demanding, and a frequent source of concern. If that weren’t enough, today’s increasingly complex and combative, if not outright hostile healthcare environment has seen a rapid evolution of a whole new array of potential exposures, quite apart from that old standard definition of “malpractice” where some in-practice accident or wrong decision results in physical injury to a patient. Today’s chiropractic professional liability insurance managers, if they are truly tuned in to the realities of today’s practice environment, have had to recognize the fast-paced dynamic of the threats and challenges DC’s in practice may face and respond with expanded and enhanced forms of coverage. This is one of my highest priorities.

Trends in malpractice continue to keep all health professions under serious pressure and, despite state efforts at limiting attorney’s fees, caps on damage awards, placing tighter limits on the timeframe for filing malpractice claims and other “tort reform” provisions, malpractice exposure is still the doctor of chiropractic’s greatest liability risk. This pressure is only going to expand with greater consumer access to health care and legal information through the Internet, growing consumer activism and a hungry legal profession willing to take on any claim, no matter how flimsy.

The chiropractic profession has the advantage of being one of the safest and most effective forms of health care, but we continue to be caught up in the greater malpractice environment in which the medical profession is very much on the defensive. This environment is stimulating a new wave of legal and consumer initiatives, with a “right to safety” becoming a new topic in public policy discussions on health care.

Activist consumer groups and attorneys are seeking to establish “judicial recognition” of a patient’s right to safety as a new element in the litigation mix. The aim of these activists is to seek to use this new “right” to stimulate greater caution and more effective injury prevention in hospitals and, ultimately, on the part of individual doctors. Because this sounds like a worthy cause, many politicians will likely be mobilized to promote it, and we will certainly hear more about these issues in the coming months. This is an environment in which you must have solid liability coverage that extends specifically to cover the new range of exposures the DC potentially may face. That range includes, but is not limited to, the following types of claims and charges:

  • Board investigations and hearings
    :quoteright_open:I am not being the least bit alarmist or over-sensationalizing the new risks and exposures doctors are facing these days.:quoteright_close:
  • Insurance audits
  • “Overutilization” charges
  • Documentation issues
  • Advertising issues
  • Billing errors and omissions
  • “Boundaries” and sexual misconduct charges
  • Coverage for your corporate or partnership entity

I am not being the least bit alarmist or over-sensationalizing the new risks and exposures doctors are facing these days. HIPAA is real. Insurance audits and billing errors and omissions issues are a fact of modern day practice. Above all, in recent years, a new activism has emerged on the part of some state chiropractic boards in which actions against practitioners are being taken on the basis of questions of utilization and procedure that have never been a part of board scrutiny.

Today, perhaps in response to pressure from third-party payment agencies, or some misplaced desire to re-define the norms of chiropractic practice, some boards have acted against practitioners for “over utilization,” X-ray policies and very general communications with the public. These types of board actions clearly push the envelope into new territory and have many believing that such boards have grossly exceeded their authority. Still, unchecked by the courts or the state legislatures, such boards can lay de facto claim to new authority, and this means that you will need to be on your guard even more than in the past.

Real cases highlight the list of strange and completely unforeseen situations in which DC’s are finding themselves. In one state, a doctor was cited for misleading the public on the basis of the content of articles published in recognized journals posted or linked on his practice website. In another case, a DC was cited for overutilization for seeing a patient 12 times following a high-speed rear-end auto collision. Still another doctor was cited for failure to repay an insurance company for the care of a small child because no “series” of X-rays was taken, in spite of the fact that every safety and utilization guideline states that X-rays of children are to be avoided except in very specific situations, of which this was not one.

The source of this new wave of complaints is also of curious interest because almost none of these complaints dealing with practice norms come from consumers. Boards are taking the initiative themselves, responding to third-party payers and, sadly, other chiropractors, as the basis for their aggressive actions. The shaky ground that they are moving onto, however, has also prompted a number of lawsuits by the DC’s who are on the receiving end of such complaints, and those DC’s almost always win in the courts. The financial cost and distraction of such a suit is a very high price to pay, especially when in the eyes of most chiropractors and chiropractic organizations, the behavior cited as inappropriate is seen as well within the established norms of care.


As we consider the forces behind the new dynamic of professional liability, it is also important to look at the greater economic and regulatory, and even the political environment, since those factors are having a direct impact on professional liability challenges. The rules and regulations covering the delivery of and payment for health care services are becoming increasingly stringent and detailed and are being enforced by a highly driven bureaucracy with greater authority than ever before. The current economic crises in state and federal government programs is a strong motivator for more and more stringent enforcement, since managers of those programs have discovered that fines and re-payment of benefits is a major source of new revenue. Because the states and even the federal government are desperate for money, the pace and volume of enforcement and claims and charges against health care professionals are likely to greatly expand in the coming months. They are doing this because they see the potential for big money in fines and recoveries.

According to an October 10, 2011, US Department of Health and Human Services (HHS) press release, “In 2009 alone, more than a billion dollars in health care fraud monies have been recovered under the False Claims Act.” States are following suit and looking for every possible means to delay payments for covered services in their Medicaid programs, reduce payments or demand repayment sometimes on the flimsiest of premises. Private insurance is perhaps embracing the repayment or denial wave with the greatest gusto. Most DC’s have gotten the letters demanding repayment based on some new policy or finding. These are all situations where the doctors of chiropractic will be obliged to defend themselves and their care decisions against a whole new range of charges.

The federal government is massively beefing up its fraud and enforcement efforts. In May of 2009, the US Department of Justice (DOJ) and HHS announced the creation of the Health Care Fraud Prevention and Enforcement Action Team (HEAT) and the Obama Administration has announced that fraud prevention and enforcement is a “cabinet level” concern. In a similar vein, HHS has also established what they call their Senior Medicare Patrol (SMP) Program through tens of thousands of senior citizen volunteers who are being mobilized to supplement anti-fraud efforts. In these new efforts, money, its recovery or denying payments, is a top priority of policymakers. No one has said much about injured patients here.

All organizations and individuals in the chiropractic profession absolutely detest fraud and genuine abuse. I encourage any patient or provider who observes genuine fraud to report it immediately. What is alarming, however, is that, now, disputes over “medical necessity” are being thrown into the same category as billing for a service that was never delivered or some other outright criminal act. Here is how the CMS website defines “fraud & abuse”:

What Is Fraud & Abuse?


Fraud occurs when someone intentionally falsifies information or deceives Medicare. Abuse occurs when doctors or suppliers don’t follow good medical practices, resulting in unnecessarycosts to Medicare, improper payment, or services that aren’t medically necessary.

What this means is that someone’s opinion about “necessity,” if it happens to disagree with yours, places you in jeopardy like never before. This means that your clinical records will not only need to document your findings and the rationale for care for case management and reimbursement, but to defend yourself against a new wave of financially driven “necessity” claims. Here, as has always been the case, your patient records are your first and best line of defense. As well, sound chiropractic clinical guidelines are invaluable.

Doctors of chiropractic must be ever aware of the rapidly changing nature of the challenges they will be obliged to deal with in the months and years ahead. If they are smart, they will seek out the most comprehensive, proven and effective malpractice coverage they can find. Remember, it is not about “malpractice” in the old sense of an injured patient seeking redress for their pain and suffering anymore. Professional liability coverage must work to defend against charges that range from lapses in documentation, which some clever program manager might enhance into allegations of fraud, to complaints about your advertising to a state board. You need help and your malpractice company should be your most reliable ally in dealing with today’s new and unforeseen challenges.