NEW JERSEY CHAPTER
AMERICAN COLLEGE OF SURGEONS
Volume 3; Issue 3 Fall, 2011
60th Annual Clinical Symposium
Saturday, December 3, 2011
9:00 a.m.—5:00 p.m.
The Renaissance Hotel & Conference Center, 515 Route One South, Iselin, NJ
A minimum of 7.5 Category 1 CME credits will be available.
Early Morning Session: 7:00 a.m.—9:00 a.m.
Cancer Commission; Dr. Jarrod Kaufman, Moderator
New Initiates Breakfast
8:00 a.m.– 9:00 a.m.
Guest: David Hoyt, M.D., Executive Director, American College of Surgeons
Morning Session: 9:00 a.m.—12:00 p.m.
General Surgery : Dr. Adam Kopelan, Moderator
Otolaryngology: Drs. Paul Carniol & Gabriel Wong, Moderators
Special Joint Session Otolaryngology/Plastic Surgery: Dr. Daniel Alam:
“The First Face Transplant in the US”
Plastic Surgery: Drs. Valerie Ablaza and Gregory Greco, Moderators
Residents/Young Physicians: Drs. Harry Agis and Ronald Chamberlain, Moderators
Surgical Oncology: Dr. Lawrence Harrison, Moderator
Urologic Surgery: Dr. Mark Jordan, Moderator
Vascular Surgery, Dr. Michael Curi, Moderator
Luncheon : 12:00 p.m.—2:00 p.m.
12:00 p.m.—12:45 p.m.: Business Meeting, Frank T. Padberg, Jr., M.D., President
12:45 p.m.—1:45 p.m.: Sheen Award Lecture, Jonas T. Johnson, M.D.
Afternoon Session: 2:00 p.m.—5:00 p.m.
Bariatric Surgery: Dr. Michael Bilof, Moderator
Cardiothoracic Surgery: Dr. Donald Syracuse, Moderator
Colon & Rectal Surgery: Dr. Howard Ross, Moderator
Neurosurgery: Dr. Arno Fried, Moderator
Trauma Surgery and Surgical Critical Care: Dr. Felix Garcia, Moderator
Page 2 New Jersey Chapter, American College of Surgeons FALL, 2011
NEW JERSEY CHAPTER, AMERICAN COLLEGE OF SURGEONS
Executive Office: 52 Elm Street, Morristown, NJ 07960
(973) 539-4000 FAX: (973) 539-9493 E-mail: firstname.lastname@example.org
Newsletter Editor: Frank T. Padberg, Jr., M.D.
Managing Editor: Andrea Donelan
Opinions expressed in this newsletter are not necessarily those of NJACS. Mention of products or services does not constitute
endorsement. Clinical, legal, tax and other comments are offered for general guidance only. Professional counsel should be sought for specific
situations. For reprint permission call (973) 539-4000.
2010-2011 Chapter Officers Governors
President………………….....Frank T. Padberg, Jr., M.D. Bruce Brenner, M.D. H. Stephen Fletcher, M.D.
President-Elect……………...Ronald S. Chamberlain, M.D. Mark J. Moritz, M.D. Fred Weber, M.D.
Vice-President…………....... Michael A. Goldfarb, M.D. Lewis Wetstein, M.D.
Secretary……………….…...Fred Weber, M.D., JD ACS Committees
Treasurer………………...….Michael J. Spedick, M.D. Felix Garcia, M.D. Committee on Trauma
Executive Director………….Andrea Donelan Jarrod Kaufman, M.D. Cancer Commission
Immediate Past President…...Paul J. Carniol, M.D.
Chapter Councilors Past Presidents
Michael Arvanitis, M.D. Shrewsbury Paul J. Carniol, M.D. Lewis Wetstein, M.D.
Arnold Baskies, M.D. Willingboro Mark Moritz, M.D. William Rough, M.D.
Howard M. Berger, M.D. Toms River Bruce Brenner, M.D. H. Stephen Fletcher, M.D.
Joseph Cauda, M.D. Shrewsbury Paul LoVerme, M.D. J. Thomas Davidson, M.D.
Aaron Chevinsky, M.D. Morristown Robert W. Hobson, M.D. Robert C. Davies, M.D.
Henry Davison, Jr., M.D. Princeton James Alexander, M.D. Kathleen Kelly, M.D.
Louis Galdieri, M.D. West Orange John Donahue, M.D. Albert Frankel, M.D.
Leonard Galler, M.D. Somers Point Ralph S. Greco, M.D. William Hardesty, M.D.
James N. Gardner, M.D. Summit John Krause, M.D. Rudolph Camishion, M.D.
Charles Moss, M.D. Hackensack George Saj. M.D. William Rainer, M.D.
Michael Nussbaum, M.D. Livingston Cyril S. Arvanitis, M.D. Donald Brief, M.D.
Robert Olson, M.D. New Brunswick Ames Filippone, Jr., M.D. Roy Morrow, M.D.
Stephen J. Pilipshen, M.D. Moorestown Anita Falla, M.D. Francis Barse, M.D.
Richard J. Scott, M.D. Little Silver William Muir, M.D. James Mackenzie, M.D.
Paul Starker, M.D. Summit Victor Parsonnet, M.D. Benjamin Rush, Jr., M.D.
Stanley Z. Trooskin, M.D. New Brunswick James Chandler, M.D.
ANNUAL MEETING RSVP
DECEMBER 3, 2011
__________ Yes, I am a member and will be attending the 60th Annual Clinical Meeting.
_____ I will attend the Morning Session _____ I will attend the Afternoon Session
_____ I will attend the Sheen Award Luncheon
_____ Members: $75.00 _____Non-Members: $150.00 _____ Residents: $25
City:_________________________________ State:_______ Zip Code:_________
Telephone:_____________________ FAX: ______________________ E-mail address:_____________________________
Visa and MasterCard accepted for Payments:
Card#_________________________________________ Exp date:______________ Security Code:____________
CC mailing address:_________________________________________________________________
_______ Check Enclosed in the amount of ________________
E-Mail registration to: email@example.com
New Jersey Chapter, American College of Surgeons
52 Elm Street, Suite #A7, Morristown, NJ 07960
Page 3 New Jersey Chapter, American College of Surgeons FALL, 2011
SOCIAL MEDIA AND YOUR MEDICAL PRACTICE
Social media is a relatively new new sexual partner, in addition to her code which provided that students should
phenomenon to be considered by medical husband. After this information flowed maintain the confidentiality of all
practices. Facebook was only launched in through several other individuals, the information obtained through clinical
February 2004. By August 2008, husband’s relative posted it on a social rotations. Litigation ensued about whether
Facebook had 100 million users networking site, leading to a lawsuit the school should have allowed the
worldwide, and now has more than 750 against the clinic where the employee plaintiff an opportunity to challenge the
million worldwide. This includes 95 worked, the relative, and the employee. expulsion and whether it was warranted.
million users in the United States alone. The lesson from this case is that a This case illustrates why medical
Essentially, medical practices cannot medical provider should be prepared for practices need to adopt policies and
afford to be ignorant of social media, even attenuated means of communication of procedures that are social media ‘aware’
if they choose not to actively participate. PHI through social media. A prudent and ensure that these policies are
By taking time to consider the risks practitioner should take some time to distributed, accepted and enforced. The
involved in employees’ (including consider the ways an employee can gain policies should not be complex, as they
physician principals’) use of social media access to PHI he or she should not see and will basically be adopting traditional
and ways to prevent or limit their consider policies to prevent dissemination privacy protections into the social media
exposure, medical practices can avoid of such information. In addition, a policy context. They need, however, to provide
expensive litigation. addressing the situation where an clear cut definitions of what information
The HIPAA privacy rule became employee knows a patient outside of work should be considered private. Given the
effective on April 14, 2003. When it was may be prudent. real-world difficulties in ensuring that
drafted in 1996, the concept of social The sharing of patient information distributed information is, in fact,
media was simply beyond imagining (at in this way is curious, considering most adequately sanitized of PHI, and the
least for most of us). Yet today, it is an healthcare providers would generally never realities that there are virtually no
integral part in many people’s lives and consciously violate privacy protections. legitimate work-related reasons to share
medical practices must consider the legal Yet, in the context of social media, people this information, these policies should
implications of social media if they are to let down their guard and are simply willing adopt a no-tolerance policy to sharing of
best manage the associated risks. indiscriminately to share the most intimate any patient information via social media.
Presuming that your practice details of their personal lives and those of Employees often take a contrary
qualifies as a “covered entity” for purposes others. As a sign of the times, sadly, this is position, citing both “free speech”
of HIPAA (which is a safe assumption), rapidly becoming the social norm. Given protections, and an unfounded argument
the primary concern for medical practices this radical change in what is generally that employers cannot regulate employee
involves the sharing of protected health considered acceptable behavior, it is not conduct outside the workplace. It is
information (PHI), either intentionally or surprising that healthcare providers share, beyond the scope of this article to delve
inadvertently, through social media. PHI often without thinking, protected health into the details about why these arguments
is broadly-interpreted, and as defined by information. Providers also appear to are misplaced, but suffice it to say that
the law includes any part of a patient’s share PHI via social media thinking that employers can, in fact, prohibit employees
medical record or payment history which they have sufficiently ‘sanitized’ the from the unauthorized and inappropriate
can be linked to that patient. information of details as to make the discussion or distribution of patient
The problem arises, of course, practice acceptable. Simply put, this is a information. One important reason for this
when practice employees, either during the practice that can never be condoned. prohibition is that HIPAA is not the only
course of their employment or outside of A recent case involving a nursing legal consideration which must be
the workplace, share information about school illustrates this premise that by addressed in this context. Individuals have
work via social media. Given the sharing details of one’s personal life other privacy protections, both by statute
widespread acceptance of general privacy through social media, one can also share a and common-law, which can open
practices, it is rare that people distribute patient’s health information. In Yoder v. providers and practices to civil,
information with a high degree of University of Louisville, 2009 WL administrative and criminal liability. In
specificity, such as “I just treated John Doe 2406235 (W.D. KY 2009), the plaintiff short, the risks dramatically outweigh any
in the ER for XYZ condition.” However, was enrolled at a nursing school and taking possible reason to share patient
recent cases show the surprising ways PHI a class on childbirth. As part of her information via social media, and so any
or other sensitive information can be classwork the plaintiff was required to sharing of patient information in this
shared. For example, in a recent Minnesota “shadow” a pregnant mother up through manner should be strictly prohibited.
lawsuit an employee told a relative that he delivery. Through social media she later Recently, there has been a flurry of
had seen the medical records for the wife described the delivery of the baby, in activity surrounding social media and what
of an acquaintance and they described her graphic detail, non-identifying information is referred to as “protected concerted
treatment for a sexually transmitted about the mother, and her views on child activity” by the National Labor Relations
disease. He also told the acquaintance that birth. The nursing school expelled the Board. In Short, employers, subject to the
the wife informed her doctors she had a plaintiff for violation of its confidentiality (Continued on Page Four)
Page 4 New Jersey Chapter, American College of Surgeons FALL, 2011
(Continued from Page Three) documented.
Board’s jurisdiction, cannot prohibit Monitor social media sites for REMINDER
employees from discussing the “terms and inappropriate conduct. The following certificates are
conditions” of employment, as it would Follow these steps and use common required to practice medicine in
tend to discourage employees from sense and you should be better able to
forming organized labor unions. It is easy
protect your practice from the risks
for employers to run afoul of this presented by this new form of media.
consideration by drafting policies that are Robert J. Conroy, Esq.,
NJ State BME
overbroad and prohibit any discussion, at Matthew R. Streger, Esq., Svetlana Mr. William Roeder
all, of workplace issues in the social media Ros, Esq. and Peter D. Espey, Esq. Executive Director
context. While this may be problematic, a Robert J. Conroy, Esq., is a principal of Kern P.O.Box 183
prohibition against the sharing of patient Augustine and is a nationally-recognized
authority on health law matters. Matthew R.
Trenton, NJ 08625-0183
information is certainly not, and should not
present any problem in this regard. Streger, Esq., and Svetlana Ros, Esq. are (609) 826-7100
Another area of consideration in associates at Kern Augustine Conroy &
the social media context is inappropriate Schoppmann, PC, in Bridgewater, New
online conduct. Again, individuals seem Jersey, and focuses their practices on CDS Registration
to forget that conduct which is prohibited healthcare litigation. Peter D. Espey,
Esq., is an associate-intern with Kern
directly between individuals in the
workplace is similarly prohibited when Augustine. Chief Drug Control
conducted via social media. This conduct Department of L& P Safety
includes, but is not limited to, sexual P.O. Box 45022,124 Halsey
harassment, racial discrimination and Street, 7th Floor
otherwise creating a hostile work ACS LEADERSHIP Newark, NJ 07101
environment. These concerns are actually
aggravated in the social media context, as CONFERENCE & FIRST (973) 504-6545
these issues used to be primarily verbal ANNUAL ADVOCACY
actions and conduct, when conducted via
social media there is usually an easily-
County Clerk Registration
proven and documented record created. Certificate
Again, this is a simple area to address, as March 25-27, 2012
policies which prohibit discriminatory or J W Marriott NJ SBME regulation 45:9.17
harassing conduct between individuals Washington, DC requires that you register
should also prohibit identical conduct via your license with the County
social media. For information, contact Rhonda Clerk in the County in which
Recommendations for medical Peebles at (888) 857-7545.
practices when addressing social media
issues include: TERMINATION OF THE
Consult legal counsel prior to drafting .
any policies that implicate social RELATIONSHIP Drug Enforcement
media, and have any existing policies NJAC 13:35-6.22 requires that
reviewed for appropriate content and physicians notify patients in writing of
termination of care no less than thirty days 80 Mulberry Street
Create procedures to address prior to the date of termination. The Newark, NJ 07102
situations where staff members are notification is to be mailed certified mail, (973) 273-5063
acquainted with patients and interact return receipt to the last known address of FAX: (973) 297-4842
the patient. Physicians are required to
with them outside of work. (800) 882-9539
Establish specific policies for social provide all necessary emergency care and
services including prescriptions.
media in the workplace which include
photographs and videos, and are Physicians are not required to comply
neutral as to the social media site. with the requirements if the physician/
patient relationship has been terminated by
Ensure that existing policies and
the patient or if the physician has
procedures also include provisions for
discontinued providing services to a
social media, including privacy
particular managed care carrier or HMO in
practices and workplace conduct.
which the patient is enrolled.
Ensure that staff members are trained
Copies of the regulations can be
in these policies, and that the training
obtained by calling the Chapter office,
and acceptance of the policies is well-
Page 5 New Jersey Chapter, American College of Surgeons FALL, 2011
Your New Jersey Chapter is function is to interview candidates for or “what do we do with our non-surgical
offering an exciting opportunity to share Fellowship in the American College of time?” We would like to feature more of
collegial interaction and obtain Continuing Surgeons. Multiple specialties, Governors, our Chapter members’ involvement in non-
Medical Education credits locally at our and active recent initiates are participants surgical endeavors; please contact the
Annual Chapter meeting scheduled for in these committees. Recognizing a Chapter Office or myself with suggestions
Saturday December 3, 2011. The program geographic disparity in the long-standing and volunteers.
continues to bring special guests to New districts, an adjustment was recommended As this will be my last message in the
Jersey to share their expertise with you, the to provide a more even representation President’s Column, I would like to thank
NJ surgeon. The program this year was across the state. each of you for the privilege of serving as
organized by President-Elect Ron A new event this at this year’s annual your President this past year. Your Chapter
Chamberlain with a comprehensive meeting is the Initiate’s Breakfast. This is is recognized as an active organization and
distribution of topics. Featured participants designed to make New Jersey Fellows feel can only continue to grow with the
at this year’s meeting include National welcome in their NJ Chapter. The council outstanding leadership from the current
Executive Director David Hoyt, Robert unanimously voted to sponsor this officers and councilmen and the
Bahnson representing the American Board opportunity for new young fellows to meet enthusiasm of our new members.
of Urology, Jonas Johnston the Sheen their officers and councilmen on a less Yours in Fellowship.
Awardee, and Daniel Alam describing formal basis. Frank T. Padberg, Jr., M.D., FACS
facial transplantation in a joint Plastic and You will notice a new feature in the President
Otolaryngology session. Fall newsletter highlighting the “other”
Recipients of the Student Loan things our member surgeons do when not
repayment program, initiated, organized, engaged in the practice of surgery.
and Directed by your Chapter under the Surgeons are unique individuals with many
guidance of Michael Goldfarb, Vice- talents, but we often become so deeply
President, will be introduced at the annual invested in our profession we miss out on
meeting. Special thanks are extended to some of the other aspects of life. We
the law firm of Kern, Augustine, Conroy & discover new and different talents when
Schoppmann for their invaluable we direct our enthusiasm and energy to
assistance in development of this special other endeavors. To inaugurate this
project. If you have a chance during the section, I invited Former President George
meeting, please express your thanks. Saj to share some of his Wood Sculptures.
In addition to the Governors, your While these are surely unique, he has
council was asked to make considered making some available for
recommendations for participation in our 5 purchase for the enthusiast. —Thus, this Frank T. Padberg, Jr., M.D., FACS
New Jersey Committees on Applicants. Its new concept Surgical Alter Egos, Hobbies,
“SURGEONS’ ALTER EGO”
George Saj, M.D.
Surgery is an intense, all consum-
ing pursuit. To maintain their equilib-
rium and good humor surgeons need to
have ways of escape and restora-
tion. As Churchill said about this, “the
master key is change”. I found that
change in the pursuit of art, producing
images from pieces of painted wood
and found objects. Now, retired after
45 years in medicine, art has given me
a second career. It is intense, though
less risky and without night-call. Here
are several examples of my current
George Saj, M.D.
Lot’s Wife Einstein
Page 6 New Jersey Chapter, American College of Surgeons FALL, 2011
PORTUGAL PILGRIMAGE 2011 LONDON PILGRIMAGE
April 15, 2012-April 22, 2012
Join your colleagues for an
exciting educational exchange and
sight seeing with the Portugal Chapter
of the American College of Surgeons.
The price is $2,899 per person,
double occupancy (includes $420 per
person fuel surcharges). For single
occupancy, add $849.
Air taxes are an additional $89 per
person. Fuel surcharges and air taxes
are valid at time of printing and are
subject to change. Price is based on 20
fully paid travelers. (Price reduction
for 30 and 40 paid travelers).
2011 London Pilgrimage—May 26, 2011
The price includes: Andrew Spedick, Dr. Lewis Wetstein, Nancy Wetstein
Featured Event: Academic & and Dr. Michael Spedick
Medical Presentation with the
Fellows of the Portuguese Chapter,
ACS at The Oncologic Institute.
Round-trip air transportation from
Newark on the services of TAP
ABC Destinations handles your
baggage outside of the airport for your
arrival and departure. (Based on
one bag per person).
An experienced professional English
speaking assistant will assist you on
the vacation upon arrival in Lisbon.
Round trip transfer to Hospital with
English speaking assistant.
Five-star hotel accommodations for
six nights at the centrally located 2011 London Pilgrimage—May 2011
Dr. Stephen Fletcher, Cathy Rough, Dr. William Rough, Dr. H.
Tivoli Lisboa Hotel. (including hotel Brown Elmes, Ann Elmes, Sharon Davidson, Dr. J. Thomas
tax and service charges.) Davidson and Justine Fletcher
Daily breakfasts, two lunches, two
dinners (water and wine included).
Half-day guided tour of Lisbon with
English speaking tour guide, including NEW MEMBERS WELCOMED!
entrance of Jeronimos Monastery Michael A. Baskies, M.D. Adam Kopelan, M.D.
Cloisters and St. George Castle. Orthopedic/Hand Surgery, Livingston General Surgery, Millburn
Half-day guided tour of Sintra with Adam Berman, M.D. Gregory Lovallo, M.D.
Urology, Denville Urology, Maywood
English speaking tour guide, including Steven J. Binenbaum, M.D. David May, M.D.
entrance of Villa Palace General Surgery/Bariatric Surgery, Eatontown General Surgery, Egg Harbor Township
Optional tour to Algarve available at Marson Davison, M.D. Domenico Savatta, M.D.
an additional cost starting at $245 per General Surgery, Hackensack Urology, West Orange
Gregory Greco, M.D. George Tsioulias, M.D.
person (lunch and entrance fees are extra). Plastic Surgery, Red Bank General Surgery, East Orange
Tour includes Cape St. Vincent, Sagres, James W. Herrington, M.D. Nirman Tulsyan, M.D.
Ponta da Piedade and Vilamoura. Depart Vascular Surgery, Somers Point Vascular Surgery, Morristown
hotel at 7:00 am and return 8:00a.m.. Kevin Holzman, M.D. Gary Tuma, M.D.
Colon & Rectal Surgery, West Orange Plastic Surgery, Ewing
Registration form on page eleven. For Mark Jordan, M.D. Alexander M. Wohler, M.D.
additional information please call the Urology, Newark Cardiothoracic Surgery, Paterson
Chapter office or ABC Destinations at Seth Kipnis, M.D.
(800) 227-5858. General Surgery
Page 7 New Jersey Chapter, American College of Surgeons FALL, 2011
The Painless Goodbye
Talk to any Human Resources insurance, or other plans the employee Employee Handbooks, Policy and
Director and they will tell you that one was enrolled in through their Procedural Manuals, OSHA and/or
aspect of the position no-one enjoys employment. HIPAA manuals, etc.) as well as all
performing is employee termination. (Note: If any monetary advances electronic and cellular devices.
Whether by employee or employer were made, be certain that all funds STEP SEVEN: Review, in detail,
decision, this can be an involved are returned in full prior to the any Non-Compete, Trade Secret and
process. issuance of a final paycheck.) Confidentiality Agreements the
Granted, if the employee is leaving STEP THREE: Make employee signed during their employ.
by their choice to move onto a bigger arrangements to pay any unused PTO Be sure to stipulate that these policies
and better opportunity, to relocate, or (or sick, vacation, personal) time the will continue to be strictly enforced.
to retire, the process can be a positive employee is entitled to, in accordance STEP EIGHT: Perform in an
and pleasant experience. If the with the policies listed in your Exit Interview. Explain that
employee is leaving at the employer’s Employee Handbook. If severance is information ascertained during this
discretion due to layoff, job being offered be sure this is included. process will remain confidential.
consolidation, poor attendance, poor (Note: If there was any advance of STEP NINE: Have the employee
performance, or a policy infraction, the unearned time, be certain your Accounting provide the Human Resources
process can be difficult and often Department (or person/company Department with an address to send all
unpleasant. (Please see the Note at the responsible for your payroll is informed so future correspondence to (this will be
this amount can be subtracted from the
end of this document regarding important during tax season, for all
employee’s last paycheck.)
immediate termination.) Being future pension/401K statements, and
STEP FOUR: Inform the IT
organized and handling the situation should COBRA payments not be
Department Head or the Network
with diplomacy and professionalism received in a timely fashion).
Administrator of the date and time the
can make the burden of “the exit a lot STEP TEN: Obtain written
termination is effective. This will
easier. consent from the employee for any
enable the employee’s access to the
No matter what the reason or future reference checks. Be sure this
computer and telephone systems to be
circumstance, preparedness is crucial coincides with your company policy
terminated. Verify the employee’s
so that nothing is forgotten. on who and what information can be
passwords and access ID’s and be sure
Formulating a Ten Step released and to whom.
to designate who all future calls and
Employment Termination Checklist While this HR function can be
emails should be routed to.
can help with the exiting process. daunting, following these steps will
STEP FIVE: Make arrangements
STEP ONE: If an employee help you….EXPERIENCE SUCCESS!
to prohibit the employee’s ability to
verbally tells you they are leaving the
enter the building, including setting or (Note: In the event of an immediate
company’s employ, ask that the notice
disabling the alarm system. Make termination, the employer may choose to
be put in writing and that the
certain to have all keys or access cards assign someone to go with the employee
resignation date is clearly stated in the
associated with the business returned being dismissed to their work area to pack
notice of intention to terminate.
and provide a written notice that same their personal things, collect the
were received to the departing company’s property and escort the
(Note: This is especially important
individual from the premises.)
should the employee later decide to file for employee.
Bevelyjean Jenkins, CMM, CPM,
(Note: Many organizations have a set CPM-HRS, COM, CPC, CPM-MCS,
policy to have all locks changed, new CPMA
STEP TWO: Notify the Human Vice-President, Healthcare Operations
access cards issued, and all alarm codes
Resources Department, or the person Health Informatics Consulting, LLC
within your organization who is (609) 925-9008
responsible for benefits coordination STEP SIX: Establish a plan for FAX: (609) 925-9018
so they can provide the employee with the return of all company property. Do
a written document outlining the status not forget written materials (books,
of benefits upon termination. Include training manuals, grafts, business
COBRA instructions to continue health plans, floor plans, client/patient lists,
Page 8 New Jersey Chapter, American College of Surgeons FALL, 2011
Emerging Liability Insurance Risks
While the healthcare provider physicians switch policies without performing reputation. Some small carriers and/ or self-
landscape changes, so too does the healthcare sufficient due diligence. Examples include: insurance plans take this right away from
liability insurance landscape. Physicians who When switching carriers, not notifying individual physicians, effectively shifting
are selling their practices, or partnering or both carriers of a potential claim. control of the claims process to either the
working with larger systems are sometimes Notifying a carrier of a claim, but not carrier or employer. Two main problems can
encouraged to accept a new liability insurance getting confirmation of coverage. occur:
plan. Other physicians are being approached by
Not reporting a claim to a carrier prior to Hospitals settling a claim without a
representatives touting the latest concepts in physician’s consent, and unilaterally
renewing a policy.
professional liability insurance. With new apportioning a percentage to that physician
When an adverse incident occurs,
plans though, come new issues, and sometimes,
physicians should always contact their A carrier settling a claim without the
new lawsuits. To avoid litigation tomorrow, consent of one of its insureds, making it
physicians should be asking five essential legal advisor(s).
Is My Tail Guaranteed? By Whom? reportable to the national practitioner
questions today. databank and the NJ division of consumer
What Type of Coverage Will I Have? Even if an employer provides coverage to
an employee while he or she is working on its affairs, and also potentially making it more
The two main types of professional expensive to secure coverage in the future.
liability insurance coverage are occurrence and behalf, this does not guarantee that coverage
will remain in place after the employment Physicians should request a consent-to-
claims-made. Occurrence coverage provides settle clause prior to signing on to a policy
“permanent” protection, as long as coverage is relationship ends. In one recent NJ decision, a
court essentially held that an employer is not when possible.
in place when a covered incident that leads to a Is The Plan Financially Stable?
claim occurs. responsible for an employee’s tail coverage in
the absence of contractual language to that Despite a history of many company
Claims-made coverage requires a failures, medical malpractice has been a highly
policy to be in effect both at the time an effect. Therefore, the burden is on physician-
employees to ensure that their coverage profitable area of insurance over the past few
incident that leads to a claim occurs, and at the years. This revelation, along with the relatively
time the claim is made. Therefore, if there is survives post-employment.
Significantly, some liability insurance insignificant amount of capital needed to start
any interruption, lapse, or termination in an alternative risk model to insure physicians
coverage, some claims may not be covered. programs do not even allow individual
physicians to address tail coverage upon the (e.g. captive or risk retention group) has
Some examples of prior cases, which involve spawned numerous professional liability
claims-made policies that have led to denials of termination of an employment relationship, and
are beholden to the employer to ensure that programs. Some of these programs have
coverage, include: already failed.
coverage remains in force.
Expiration of extended reporting (“tail”) The best way to track a program’s
For example, if a medical group has a
coverage prior to a claim being made. financial strength is to inquire about its AM
“blanket” claims-made policy that covers all
Failure to align retroactive dates when employed-healthcare providers, the group alone Best (financial strength) rating. Since many
changing carriers. is responsible for renewing the policy every new programs do not have the financial ability
If coverage is claims-made, physicians year. If the group fails to renew the policy, the to qualify for an AM Best rating, physicians
should confirm, in writing, the terms of the tail. policy can cancel without the physician having should ask their accountants or other advisors to
What are My Claim Reporting the ability to obtain his or her own tail. review the annual financial statements. Two
Obligations? Examples of tail issues that can occur: common issues that occur with financial
Reporting obligations under an occurrence hardship:
A hospital system declares bankruptcy and
policy are relatively flexible, as coverage is
cannot meet its insurance payment Financial inability of a healthcare system
triggered based upon the occurrence of an to purchase tail coverage for employed-
obligations, so coverage for itself and all
event, not the reporting of an incident or claim. physicians.
Nevertheless, physicians should err on the side
Other physicians within an insurance pool Failure of an insurance program, leaving
of caution, and always consult their personal physicians personally liable to defend
attorneys or brokers - prior to contacting a experience significant losses, leading to a
collapse (insolvency) of the program (see against lawsuits.
carrier - when an adverse event occurs. Conclusion
Reporting requirements under a claims- number 6).
A group breaks up, or an individual leaves The changing medical malpractice
made policy are generally stricter, especially if insurance market has prompted new waves of
a physician is changing carriers. Before a group, and is unable to purchase a long-term
tail. litigation over coverage, and much of it
changing carriers, physicians should report, and involves physicians that have become
verify, coverage for any adverse incidents. Physicians should always have the terms
of liability coverage in writing. accustomed to certain protections, but lost them
Even when physicians are not changing because they signed on to plans that they
carriers, it is important to understand what Do I Have a Consent to Settle Clause?
As new medical malpractice insurance perhaps did not fully understand. A little due
circumstances give rise to a “claim,” and when diligence before making these important
they should be reported. options continue to become available to
physicians, important provisions that have decisions could save physicians considerable
Notably, there are variations on claims- resources down the road.
made policies, such as “claims-made and traditionally been automatically included in
policies have quietly been removed for the Brian S. Kern, Esq.
reported” policies, which preclude coverage for Argent Professional Insurance Agency, LLC
any adverse incident that could reasonably lead benefit of insurers, or insured-systems. One
30 Technology Drive, Warren, NJ 07059
to a claim if it is not reported before the policy such provision is a “consent-to-settle clause,”
renews. Many problems can arise when which can be important to protect a physician’s
Page 9 New Jersey Chapter, American College of Surgeons FALL, 2011
Page 10 New Jersey Chapter, American College of Surgeons FALL, 2011
NEW JERSEY CHAPTER
AMERICAN COLLEGE OF SURGEONS
52 ELM STREET
MORRISTOWN, NJ 07960