The Importance of Doctor’s Liability Insurance in Protecting Patients and Doctors

Even the most experienced medical professional can misjudge a situation. Then a doctor’s liability insurance is all the more important. By Tom Stahlman

To err is human and doctors are also only human – but with a particularly responsible job. In the worst case, their mistakes leave damage to the life and limb of their patients. If every active doctor makes just one mistake a year, that’s statistically more than 1,300 wrong decisions a day with almost half a million working doctors and dentists in Germany. They can range from a mishap to a fatal misjudgment.

This is one of the reasons why there has been a nationwide mandatory insurance requirement for doctors since July 2021. It prescribes liability insurance for freelance physicians as part of their contract medical work. Not only patients with legitimate claims for damages benefit from this. At the same time, the policy protects doctors from the possible existence-threatening consequences of a serious mistake. They are personally liable: Under certain circumstances, they may therefore have to be liable indefinitely with their entire private assets.

A mistake is not only incorrect treatment, but also the violation of the obligation to inform patients and to document treatment. Failure to heal, on the other hand, is not medical failure. Doctors owe their patients sensible, error-free treatment according to the general standards in medicine, but – understandably – no healing success.

Orthopedist front

In 2021, the medical service of the health insurance companies, which only examines suspected cases from those with statutory health insurance, confirmed an error in 3,665 cases and an error with damage in 3,222 cases. More than 13,000 bugs were reported in total. At the same time, the medical service warns that it has been scientifically proven that the number of unreported medical errors is significantly higher than what is visible in the statistics.

Consistent with the distribution of physicians and medical risk, two-thirds of the complaints came from physicians in inpatient care, mostly hospitals, and one-third related to physicians’ offices. The top 5 statistics show: 30 percent of the inquiries related to orthopedics and accident surgery, 12 percent to internal medicine and general medicine, almost nine percent each to gynecology and obstetrics as well as general and visceral surgery, followed by dentistry.

Incorrect behavior is evaluated very differently: Lawyers speak of a simple treatment error when the medical duty of care and medical standards of treatment are violated. An elementary violation of the professional rules or medical knowledge is considered a gross error. In practice, this leaves a lot of room for interpretation. Among other things, the question of which of the two parties bears the burden of proof also depends on the classification.

Different locations

The scope of medical professional liability insurance depends essentially on which medical activities are carried out. In the case of freelance doctors, this can include outpatient surgeries and inpatient activities in addition to outpatient practice. The latter applies, for example, to doctors who work as affiliated doctors in clinics.

However, good insurance also covers occasional off-duty or occasional medical activities, provided they are not used in a hospital, in your own practice or as an anesthetist. This includes, for example, first aid in the event of an accident and participation in the emergency and rescue services. The activities as a vaccinator, practice substitute, expert, at events or a medical friendship service in the circle of acquaintances are also secured.

There are many opportunities to provide help as a doctor. It is therefore important that an employee liability policy also expressly includes these “occasional extracurricular activities”. Retirees and doctors on parental leave, for example, require comparable insurance cover if they still work occasionally as a doctor.

It is not just about claims from the direct treatment of the freelance doctor, but also about liability if a representative or an employee behaves incorrectly. Because: Doctors are not allowed to simply transfer the liability risk of their employees to them via the employment contract. Such clauses are invalid. Physicians are also liable if their inadequate practice organization has led to patient injury. At the same time, professional liability defends against unjustified claims. For medical supply centers, so-called MVZ, the same compulsory insurance applies as for professional practice communities with employed doctors and dentists. Additional insurance cover is required for activities outside the MVZ, such as continuing your own practice or as an affiliated doctor.

Special protection

Medical liability insurance not only covers the costs in court and for a lawyer in civil proceedings. Many insurance companies also offer this protection in criminal proceedings due to medical malpractice. On the other hand, the insurance companies differ significantly when it comes to outpatient surgeries and cosmetic treatments.

Doctors are often charged higher insurance premiums for this, even if they only perform minor procedures such as endoscopic examinations. Likewise, the liability protection should not end at the same time as the medical activity, but in the case of liability cases that only materialize later, several years later, the so-called extended liability.

The statutory minimum insurance sum has been three million euros since July 2021, only for panel doctors with employed doctors and for MVZ it is five million euros for personal injury and property damage. For hospital doctors who, for example, are authorized to participate in contract medical care as part of a permitted outpatient secondary activity as so-called “authorized doctors”, the obligations to take out professional liability insurance only apply if there is no other insurance cover for this (e.g. via the hospital’s business liability insurance). .

The author Tom Stahlmann is Head of the Liability Individual Business Healthcare department at Ergo Versicherung AG.