Thus, our program does not endorse any one chiropractic philosophy nor attempt to set standards of care. We evaluate the exposure-to-loss (likelihood of increased claims and likelihood of higher claims costs) of each doctor's individual practice style and compare it to the current premium charged for professional liability insurance.
When claim managers deal with malpractice allegations -- based on what a chiropractor actually does, they are able to provide risk management input from an exposure-to-loss perspective. Based on our claims handling background, I would like to offer the following observations.
A particularly uncomfortable situation occurs (invariably after our DC policyholder and DC defense experts have declared that no duty to evaluate and refer was owed the patient) when the plaintiff's attorney raises the following issues:
Does the patient self-evaluate and judge that his ailment is only subluxation-related before seeking a chiropractor's limited contribution?
Does the patient seek a chiropractor to professionally evaluate his ailment and rely on that same chiropractor's best professional judgement for a course of action that may require referral to another health care provider?
The jury (the public) expects the latter judgement. The public already expects any health care provider to know more about human anatomy, illness, and the health care system than any patient. The public maintains that professional knowledge itself creates a special duty and obligation to the patient.
As one monitors each legal jurisdiction, note that it is the public who ultimately determines the standards of care, particularly where health care providers do not meet or exceed the public's expectations. And the public's expectations inexorably increase rather than decrease. it is only the speed of the process, and its lack of uniformity in a given jurisdiction, that is unpredictable.
It is safe to assume that, if expectations of the public (your patient) exceed the perceived care or non-care you provided, you can expect an allegation of malpractice. At trial, if the standards of the public (jury of your peers) exceed the actual care or non-care you provided, you can probably expect an adverse jury verdict, in which the jury determines there was malpractice.
A jury of your peers (the public) may not be what you expect. In many cases, the only thing you'll have in common with the jury is species and U.S. citizenship. You can be assured that a jury of your peers will not include a chiropractor.
While you can rely on an attorney to provide an opinion of the standard of care in your community, that opinion is only a snapshot of the existing legal precedent at that moment. That picture can and will be changed by the public, sometimes through legislation -- more often through case law (jury of your peers) upheld by an appellate court.
Your patient's (the public) expectations vary by individual and situation. For example, if your patient is an MD-referral or under an MD's care, your patient's expectations will be more forgiving than if you are, or perceived to be, the first contact or sole health care provider.
Though perception and reality may be two different things, they are one and the same to the public. As a profession, chiropractic is what it is perceived to be ... by the public, and the public's perception changes.
As standards of care for evaluation and referral continue to evolve, educated practitioners need to understand the very real exposure-to-loss price tag associated with the failure to recognize and address changing standards of care. From this claim manager's perspective, the 1990s will be a decade of continuing change for chiropractic.
Ken Davis
President, OUM Group