Q My friend hired an attorney to prepare certain documents for his practice, and he has offered to let me copy these documents for my practice since I’m a new doctor. These are very basic documents, such as employment agreements and employee manuals. Do you see a problem with me doing this?
A When the attorney prepared the document for your friend, it’s pretty safe to assume the attorney was familiar with the nature of your friend’s practice. Unless your practice is an exact duplicate of your friend’s practice, using his documents is not a good idea. For example, if your friend’s practice does a lot of personal injury and your practice has a high Medicare component, your practices are not alike. If you hire independent contractors and your friend hires employees, your practices are not alike. If your friend has practices in two different states, your practices are not alike.
In addition, if these documents were prepared for your friend several years ago, they are most likely outdated, since the laws concerning healthcare have been changing rapidly. Finally, you have no right to rely on these documents. This means if there is a problem with these documents, you have no right to sue the attorney because, unlike your friend, you have no relationship established with the attorney.
Q What is the difference between “occurrence” or “claims-made” malpractice insurance?
A Occurrence malpractice insurance provides coverage for any malpractice claim that arose while the policy was in force. For instance, assume that you bought an occurrence malpractice insurance policy on Jan. 1, 1998, for a period of one year. On Feb. 2, 2000, Mr. Smith, a patient treated by you in November 1998, sues you for malpractice. Because the occurrence malpractice insurance policy was in effect at the time you provided the service to Mr. Smith, you will be covered by the insurance carrier.
Claims-made coverage only protects you if the claim was made while the policy was in effect. Therefore, if you had claims-made coverage instead of occurrence malpractice insurance in the previous example, you would not be covered. Mr. Smith would have had to file a claim against you between Jan. 1, 1998, and Dec. 31, 1998, in order for you to be covered.
As many insurance companies have stopped offering occurrence malpractice insurance, you may need to obtain “tail coverage” if you have a “claims-made” policy. Tail coverage may be for a period of years or for an unlimited period of time. Do not purchase tail coverage limited by the statute of limitations in your state, because the statute of limitations frequently does not start to run until the patient discovers the malpractice. This discovery may not occur for many years after your treatment of the patient. It is worth the difference in price to have the peace of mind.
Ms. Green has been a practicing attorney since 1977. She is admitted to the practice of law in New York and Florida.
Because this column is being presented to you by an attorney, it would not be complete without a legal disclaimer. This column is provided subject to and governed expressly by the terms of this disclaimer. This column is provided for educational purposes only. The accuracy or timeliness of the information presented herein is not warranted. The information presented herein is not intended to be advice as to a specific fact pattern with which you may be presented. Accordingly, please note that the information contained herein is not being presented as legal advice with respect to any matter and that no attorney-client relationship is hereby established.