How each insurance company defines a “claim” is another important consideration when comparing medical malpractice insurance policies.
“Incident reporting” allows the physician to report an adverse outcome to the carrier as a potential claim. This is important because for a claim to be covered under a claims-made policy, the incident must BOTH happen AND be reported as a claim while the policy is in force.
If an insurance company requires that the insured receive a “written demand for damages” in order to consider a claim to be reported – then the physician must wait to be sued before the claim is recognized! This can be a real problem for physicians wishing to change professional liability carriers: Most insurance companies would decline to offer a policy to prospective clients who can expect to be sued in the future for past adverse outcomes. The carriers often consider such a situation to be the same as “buying future claims.”
Causation means that the incorrect actions of the health care provider probably led to or contributed to the injuries and damages suffered. For example, if an emergency room doctor did not quickly examine a patient, it could be a life-or-death situation. However, if the patient would have died, regardless of anything a doctor might have done, then there would be no “causation,” even if the doctor delayed his examination. Another example of “no causation” would be a person who receives an incorrect prescription from the pharmacist and realizes the mistake before she takes the medicine. However, if the medicine were actually taken, and harm resulted, there is “causation.”
To prove a medical malpractice case, it must be probable that the incorrect treatment caused the harm. In this context, “probability” means that it is “more likely than not” that the treatment caused the harm. The plaintiff must prove that there was more than a 50% likelihood that the harm was caused by the negligence. For example, in a case involving the negligent failure to diagnose cancer, if there was less than a 50% chance that earlier diagnosis would have affected the outcome, there is only a “possibility” and not a probability. The law does not permit recovery of damages based on a “possibility.”
Damages are divided into two categories: economic and non-economic. Economic damages include out-of-pocket losses that have ascertainable monetary value, such as lost earnings and medical bills. If the loss can be replaced with money, it is “economic.” Noneconomic damages are typically known as “pain and suffering” damages. It is compensation for physical impairment or disability, or the diminished enjoyment of life caused by the malpractice. If the malpractice resulted in a patient’s death, the damages include compensation for the lost financial support that the spouse and family would have received, and compensation for the loss of the decedents care, comfort and love.