Difficult Conversations Podcast
Lessons I Learned as an ICU Physician
Episode 172 | June 6, 2022
Conversations About Malpractice
CEO and Founder of Aegis Malpractice Solutions
Welcome to Difficult Conversations with Dr. Anthony Orsini. On this episode, the conversation we’ll be having not only affects physicians but quite possibly affects everyone who is listening. We’ll be talking about the complex world of medical malpractice liability coverage. It affects the cost of care, it affects physicians, patients, and hospitals, often even dictating care by a doctor. My special guest today is Jennifer Wiggins, who’s the CEO and Founder of Aegis Malpractice Solutions in Fort Wayne, Indiana, which is a niche insurance agency focused exclusively on medical malpractice insurance solutions for independent healthcare providers and medical groups. Jen brings a depth of knowledge with nearly twenty years of experience in the malpractice industry.
Jennifer tells us about two big gaps in the marketplace she observed while working at MedPro, and why she decided to start her own business. We hear some great recommendations from Jennifer explaining what doctors should be asking at the time of their initial contract negotiations about having malpractice insurance. She touches on Good Samaritan laws and how they differ based on where you practice. Dr. Orsini and Jennifer chat about having outside malpractice insurance and how it’s important to be your own advocate when it comes to getting an attorney if you need it. We learn the importance of communication in malpractice lawsuits. Jennifer explains the two biggest control levers that you can pull to make yourself safer as a practitioner that has to do with communication and documentation. Dr. Orsini tells us about the workshops they do at The Orsini Way for physicians to help them avoid malpractice lawsuit. Apology Laws are different in every state and Jennifer touches on taking advantage of any risk management courses you can take to make yourself aware of other tools and resources out there. We hear about a podcast Jennifer does, Malpractice Insights, and we find out how she helps someone who needs malpractice insurance, but she can’t find a carrier for them. If you enjoyed this podcast, please go ahead and hit subscribe on your favorite podcast platform. Go ahead and download this episode now!
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Jennifer Wiggins (2s):
Communication and bedside manner. That is the number one risk management technique that you can use to prevent a malpractice lawsuit. The two biggest drivers, it’s two biggest control levers that you can pull to make yourself safer as a practitioner has to do with communication. And then the other one obviously is documentation. Those are the two biggest things that you can control that really do have a huge effect on the outcome of a potential case. As it relates to communication, you know, bedside manner is sometimes just quickly glossed over as not that important, but the reality is it’s incredibly important. And we have data that supports the fact that providers who have a very strong relationship with their patients are less likely to get sued.
Jennifer Wiggins (43s):
We actually have seen examples where there actually has been Malpractice, but if the patient really loves their provider and the provider has a genuine relationship with them, they won’t even sue them. So to be able to see the fact that communication can even overcome instances where there might have been a little bit of negligence really goes a long way.
Announcer (1m 3s):
Welcome to Difficult Conversations: Lessons I Learned as an ICU Physician with Dr. Anthony Orsini. Dr. Orsini is a practicing physician and president and CEO of the Orsini Way. As a frequent keynote speaker and author. Dr. Orsini has been training healthcare professionals and business leaders, how to navigate through the most difficult dialogues. Each week you will hear inspiring interviews with experts in their field who tell their story and provide practical advice on how to effectively communicate. Whether you are a doctor faced with giving a patient bad news, a business leader who wants to get the most out of his or her team members or someone who just wants to learn to communicate better this is the podcast for you.
Dr. Anthony Orsini (1m 48s):
Well, welcome to another episode of Difficult Conversations: Lessons I Learned as an ICU physician, this a Dr. Anthony Orsini, and I will be your host again today. Okay. This episode’s primarily for physicians and listeners in the healthcare field, but I’d argue by the way that this is a topic that affects everyone who’s listening. It’s the complex world of medical malpractice liability coverage, because it’s really at the core of healthcare. It affects the cost of care. It affects physicians and patients and hospitals often even dictating care by a doctor, but I’m going to confess. I’ve been practicing for 25 years that I know very little bit about malpractice insurance.
Dr. Anthony Orsini (2m 30s):
Well today we’re going to get educated by someone who knows the topic inside and out. Today, I have, as my guest, Jennifer Wiggins. Jennifer is the CEO and Founder of Aegis Malpractice Solutions in Fort Wayne, Indiana. Aegis is a niche insurance agency focused exclusively on medical malpractice insurance solutions for independent healthcare providers and medical groups. With nearly 20 years of experience in the malpractice industry, Jennifer brings a depth of knowledge and experience combined with forward-thinking customer service and go to market strategies to serve EGIS clients and support their carrier partners nationwide. Jennifer and her husband, Tim Wiggins live in Fort Wayne with their five children.
Dr. Anthony Orsini (3m 14s):
She recently completed the Boston marathon and enjoys traveling, watching her kids cheer and play baseball and taking her golden retriever for walks every morning. Well, Jennifer, thank you for taking time out of your busy schedule to be here.
Jennifer Wiggins (3m 28s):
Thank you so much. I’m looking forward to it.
Dr. Anthony Orsini (3m 30s):
So we always like to start out, but just telling us a little bit about yourself, you and I had a conversation about a month ago, and I was just so intrigued because we’ve done a couple episodes on malpractice, but this is going to be a different angle, but let’s start out with just tell us who Jennifer Wiggins is and how you got into this beautiful field.
Jennifer Wiggins (3m 46s):
Yes. So it’s hard to believe I’m going on 20 years in the Malpractice industry, and it wasn’t really intending to land here, but I did. So I always knew right out of college, I wanted to be involved with healthcare at some aspect. Obviously I had a knack for business and sales, and so I landed accidentally through a Cutco knife presentation, which was the only job I could get after college. Because at that point in time, I thought I wanted to go into pharma. I couldn’t get a pharma position. And so I started answering ads in the paper and I fell into a job selling Cutco knives which by the way, are excellent knives.
Dr. Anthony Orsini (4m 21s):
We have that we’ve been buying Cutco knives for years. And I think my oldest one actually sold them for a little bit, but he didn’t look too long. So,
Jennifer Wiggins (4m 29s):
And my stepson sold them and I told him he hated it, but I’m like, you know what? It is a great experience. You got to grind it out for a little while, but I actually sold knives to the wife of an executive that worked at a malpractice insurance company here in my hometown, unbeknownst to me. And I sold them a fairly large set of knives. And at the end of the presentation, she’s like, you probably shouldn’t be selling knives. You should probably be doing something else. So that actually got me an interview at medical protective, which is one of the nation’s largest malpractice insurance carriers. They happened to be located right here in my hometown of Fort Wayne, Indiana. So I cut my teeth at MedPro. I worked there for 16 years. I worked my way up from a call center representative answering one 800 number calls into a customer service role into a national sales role.
Jennifer Wiggins (5m 17s):
And then right before I left, my job was I was the regional sales leader or a region of the country. So my job was to do direct sales. So I worked with physicians and surgeons, hospital administrators, CEOs to sell medical protective products to those individuals. But what I discovered in 16 years of working at MedPro was that there were really two big gaps in the marketplace that I observed. And the first one was there was a knowledge gap, physicians and surgeons know a ton about their field of medicine, but they know very little when it comes to medical malpractice. And whether that’s because they never really had training in medical school or residency or it’s because they’ve never had the buy it before it’s always been provided for them by an employer.
Jennifer Wiggins (6m 3s):
They know relatively little, even when it just comes to the basics of occurrence versus claims made, how do you pick a carrier? How do you know which option is best? So I’ve found that there was very little information in the marketplace in that particular area. The second thing that I realized was for me to walk into a doctor’s office and try to sell a policy from one carrier, which is the carrier that I work for. I’m not really doing a service to that particular provider because how do they know that’s the best policy? How do they know that’s the right one for them? And so I discovered kind of near the end of my time at MedPro, that really, I felt like my calling was more to be kind of both an educator in terms of understanding insurance, but also an educator in terms of understanding all of the options available in the marketplace to really find the right coverage for you.
Jennifer Wiggins (6m 56s):
So after 16 years at a really great company, I decided to resign and I started my own business. So I started AEGIS malpractice solutions in the fall of, I think it’s 2018. So we’re still a relatively young agency, but we are basically malpractice insurance brokers. So we are independent. We are not employed by or affiliated with any one particular carrier. Our job now is simply to work with healthcare providers to help them get quotes from every carrier in the marketplace and really to understand which option is right for them. And part of that involves a little bit of education. So understanding your particular practice setting, what you’re interested in doing in the future, which policy type might be the right fit for you.
Jennifer Wiggins (7m 42s):
And then from there, we can kind of guide you towards which carrier might be the right option. So it’s been really exciting, kind of drinking out of the fire hose for the last few years, but it’s been really fun because I feel like I’ve taken the knowledge that I built for the first 16 years of my career. And the last three or four has been really fine tuned into what I’m really excited about doing.
Dr. Anthony Orsini (8m 2s):
And it really makes sense. I just got a mortgage, we are buying a new home and my mortgage person shopped around different mortgages and found the best mortgage for me. I didn’t have to kind of leg it out and people do that for all kinds of, they do that for homeowners insurance. They do that for mortgages. So why not do it for malpractice insurance, but we’ve had this topic a couple of times, I mentioned in the intro, we had Jeff Siegel on who was great. Jeff, I think, you know, Jeff and Jeff is a lawyer. Who’s also an ex neurosurgeon who helps doctors with getting through difficult malpractice lawsuits and helps them get back on the track when they get a few lawsuits against them. I had Sherry Moore on.
Dr. Anthony Orsini (8m 42s):
Sherry was awesome. And I’ve actually done some lecturing for her, with doctors about communication malpractice. But you know, even after all these years, as you said, I’ve never purchased malpractice insurance, I am a Neonatologist, so I get it through the hospital, I get it through my company and I’m taking on my fourth position. Now I’m changing again. And all I do is ask is all right, this is malpractice included. And they go, yes. And I go, okay. And they say, okay, that you get a tail and you get this and that. And I go, all right, I guess that’s fine. So I’m guessing that most doctors are like that. So what advice do you have to the doctor?
Dr. Anthony Orsini (9m 22s):
Let’s take the doctor who’s working for the hospital first because that’s the majority of doctors, right? So what should he, or she be asking when they take a job and they say, oh yeah, you have malpractice. What should they be looking for? Give us some help.
Jennifer Wiggins (9m 35s):
Yeah, that’s a great question. So we generally recommend that you come armed with some preliminary questions at the time of your initial contract negotiations, because the time for you to be asking these questions and potentially asking for accommodations is before you sign your employment contract. So a couple of things that I would recommend as it relates to your malpractice insurance is first and foremost, I would ask who is the carrier? So if the hospital is self-insured, which most of them are, meaning they’re not buying their malpractice insurance out in the open market, a lot of hospitals are self-insured, which essentially means they’re the ones defending the claims, making any settlements or payouts in your behalf. And the reason why that’s important for doctors to know is because you want to know, are we talking about they’re buying from a third party carrier where there might be some vested interest outside, or is everything done in house?
Jennifer Wiggins (10m 25s):
And usually it’s done in house. It also means that it’s done in-house attorneys as well. So it might be good for you to know, are we doing it ourselves or is it handled externally? The second question. I would want you to ask is what type of coverage is it? And you referenced tail insurance just a few minutes ago. So you really need to know, is it an occurrence policy or is it a claims made policy? Most doctors don’t know the difference between the two. Yeah. And so let me finish my questions to ask, and then we can circle back on the difference because it is important, but let me say this. The claims made policy is the only policy that requires tail insurance at the end, which again, when we discuss the differences, I’ll explain what that means.
Jennifer Wiggins (11m 9s):
But if the hospital says, yes, we’ve got malpractice insurance for you, we’re a self-insured entity and it’s a claims made policy. The next question you need to ask is who is responsible for securing the tail insurance? When I leave, am I buying that myself? Is the hospital providing that for me? And if so, what does that look like? Because if you depart and the hospital says, yes, we’ll take care of it for you. Most doctors just kind of brush their hands and they walk away. But it’s important that you understand who is securing it than it has indeed been purchased or put in place for you. And then I would ask you to get a copy of it because heaven forbid, something happens two, three years down the road or a patient that you treated the time when you worked for that employer.
Jennifer Wiggins (11m 55s):
You really need to have a copy of that tail endorsement in your hot little hand, just to know exactly who is going to be, handle it for you, of who he should be contacting it and how to move forward. So ask about what policy type is it. And if it’s claims-made ask about the tail,
Dr. Anthony Orsini (12m 11s):
Jennifer Wiggins (12m 12s):
The third thing I would suggest you ask is about the scope of coverage. So most of the time, if you’re insured by your employer, they are given you what’s called limited scope and duty coverage, which means you are only insured for the work that you’re doing on their behalf at their particular institutions. So if you work for XYZ hospital system, you’re only insured for the work that you do for XYZ hospital system. So if you have any side gigs not insured for it, you want to go work at the free clinic, down the street, on the weekends and volunteer your time. You’re not covered for it. If you want to volunteer at your son’s T-ball game and be the treating physician for little kids that scrape their knees, you’re not covered under your hospital malpractice policy.
Jennifer Wiggins (12m 58s):
So you need to probably ask that question to confirm because 99% of hospital policies or employment policies are limited scope coverage. So just make sure you’re aware, because if you have any desire or any interest to do something outside of your employment, then you’re going to need to secure supplemental malpractice insurance.
Dr. Anthony Orsini (13m 18s):
Many doctors don’t know that they’re not covered with the good Samaritan laws. And I know my kids all played football and I was their coach. And one of the kids would get hurt and everybody looks over to you. They all know you’re the doctor, you’re the pediatrician. And so I’m sure the other doctors are just like me. You run out there and you help. But most of us don’t realize we’re not covered for that.
Jennifer Wiggins (13m 42s):
Correct? Good Samaritan laws differ obviously based on where you practice, but the thing you really need to keep in mind is they really only trigger in emergent situations. If you’re just volunteering your time really, or saying, sure, I can help with that at general, it doesn’t fall under good Samaritan. Yep. So that’s the third thing. The fourth thing that I would suggest you ask is regarding the issue of consent to settle. So this particularly affects hospital employed physicians. In fact, you might have a few listeners who have had the very unfortunate situation where they were named in a malpractice claim and the hospital decided to settle the case on their behalf, even though they didn’t do anything wrong.
Jennifer Wiggins (14m 22s):
Now, why would a hospital want to do that for a variety of reasons, right? Number one, they want to get out of the claim for as little amount of money as possible. Number two, they don’t want a publicity nightmare. They don’t want their name on the front page of the paper. They don’t want any negative press towards the hospital. So they may want to go ahead and just settle it quickly and quietly to make it go away. And thirdly, they obviously don’t want any big, large payouts. So if they can control the costs, get rid of it quickly, get rid of it quietly. Oftentimes doctors will end up settling claims that they wouldn’t normally need to settle because the hospital just wants it to go away. Now, why is that bad for a doctor? It’s not necessarily bad for a doctor, but you do need to understand what the ramifications of that are.
Jennifer Wiggins (15m 5s):
So, as we all know, if you get named a malpractice case and there’s a payment made on your behalf, whether it’s an indemnity payment or a settlement, it will get reported to the national practitioner data bank. And it will forever be on your record that you have had a malpractice loss against you. So that information is publicly available. Hospitals can pull it for credentialing. When you go to apply for malpractice insurance, it’s on your file. So that is a permanent part of your record that you cannot get rid of it once it’s been recorded. It could also have effects. Obviously, if it’s a really bad issue, could potentially affect licensure issues, but that would only be at that the really, really messy situation. And obviously it could impact your premium.
Jennifer Wiggins (15m 46s):
So if you’re paying your own premium or advance, getting taken out of your pay, even though it’s being taken care of for you by the hospital, they may be deducting a portion of your pay to pay your premium. Your costs could go up for that as well. So those are the, some of the things that we recommend you ask and make sure you’re aware of ahead of time.
Dr. Anthony Orsini (16m 5s):
And just to build on that. I had a friend of mine many years ago, 20-25 years ago. He was a neonatologist a baby went for cardiac surgery, had a minor complication, but they sued the CT surgeons for a setback and they sued him. However, he wasn’t even in the hospital that week, his name was on the old days to call them address. So graphs, when they used to stamp the chart and from reading it, it looked like that the attorney thought he was one of the CT surgeons that he didn’t even know he was a neonatologist. Luckily it was that situation where the hospital was representing them. But luckily someone said to him, you’re entitled to your own attorney.
Dr. Anthony Orsini (16m 45s):
You don’t have to take the same attorney. And he took that advice. The attorney said, you weren’t even in the hospital, he gave a deposition. He was dropped immediately. But I was told that, how do you not ask for that attorney? He probably would have just settled with the CT surgeons who, by the way, didn’t do anything wrong, but just settled anyway.
Jennifer Wiggins (17m 3s):
That’s right. That’s right. And that’s a really important point. And it’s one of the other reasons why, if you know that your hospital has outside malpractice insurance, let’s say they’re with a company like medical protective or pro assurance or one of the other big carriers, they will give you your own attorney. If you ask for it, most physicians don’t even know to do so to your point. It is really important, especially if, you know, you’re like I had nothing to do with this case to be your own advocate when it comes to getting it as an attorney, if you need it, particularly, if you feel like you’re just getting swept in with everybody else, it’s a really important thing to be considering.
Dr. Anthony Orsini (17m 36s):
And that dragged out even for him for two years. And I know in some states and New Jersey was one of them, you could hold up a life insurance policy, if there’s a pending case, which is terrible, that your wife and children would have to wait for that money. I mean, it doesn’t happen often, but it can happen. And so what I did when I lived in New Jersey, as I put my life insurance policy into an estate so that they couldn’t be probatable, but that was two years that he did absolutely nothing wrong yet. He was, thank God he didn’t die, but it could have been potentially really, really bad. Great advice. So we talked about a tail, we talked about what the different coverages is. So let’s move on. I’ve done some work with Sherry Moore and I do this work about, you know, I think the stats 20% of doctors cause 80% of the malpractice lawsuits, if that’s a stat that I think you’ll agree with, something like that.
Dr. Anthony Orsini (18m 25s):
And many times, most lawsuits, correct, we’ve gone with 90% of them really. There was no medical error and it’s just a patient who either is looking for answers, or maybe didn’t like the way they were treated or that what they didn’t get the outcome that they wanted. So I do a lot of work with communication and Malpractice and do that. So can you comment on how important that is in malpractice lawsuits and the relationship between good communication and good bedside manner, et cetera, with the doctors,
Jennifer Wiggins (18m 55s):
It’s funny communication and bedside manner. That is the number one risk management technique that you can use to prevent a malpractice lawsuit. The two biggest drivers, it’s two biggest control levers that you can pull to make yourself safer as a practitioner has to do with communication. And then the other one obviously is documentation. Those are the two biggest things that you can control that really do have a huge effect on the outcome of a potential case. As it relates to communication, bedside manner is sometimes just quickly glossed over as not that important, but the reality is it’s incredibly important. And we have data that supports the fact that providers who have a very strong relationship with their patients are less likely to get sued.
Jennifer Wiggins (19m 36s):
We actually have seen examples where there actually has been Malpractice, but if the patient really loves their provider and the provider has a genuine relationship with them, they won’t even sue them. So to be able to see the fact that communication can even overcome instances where there might have been a little bit of negligence goes a long way. So related to communication, some of the things that we generally recommend, some of them are really simple. So using the patient’s name, make sure you know how to pronounce their name. When you come into the room, we also really recommend that you’re very aware of your body language. Don’t be checking your watch. Like you’re in a hurry. Like you need to get out of the room quickly to go do something else.
Jennifer Wiggins (20m 17s):
If there’s a chair available. We also say, if you can sit down with the patient, that really goes a long way as well, that demonstrates you’re slowing down. You’re taking the time you’re coming down to their level, particularly if they’re laying down or if they’re sitting up in a bed, but that kind of body language really, again, shows empathy. It shows care and concern. So it’s a simple thing that you can do to try to build rapport with your patients very quickly. Also, as it relates to communication, obviously communication with the staff and kind of showing your competence and your ability to and say, okay, you’re going to see Dr. So-and-so next. This is his role in your care. And that you’ll see, and then I’ll come back again later. So just being very clear in terms of what they can expect, if they have any questions at all, you want to make sure that you’re obviously listening.
Jennifer Wiggins (21m 2s):
But another thing I think that providers have a tendency sometimes that their head is so in the medicine and in the science that they forget what it’s like to actually be the patient. So to slow down and put yourself in their situation. So to think, okay, what if this was my daughter that was in this bed in front of me, what would she need to hear from me? What if this was my mother? What would she need to hear from how my, I need to talk to her differently? Because she may not understand what I’m saying. So really to use empathy and putting yourself in their situation, again, is a great way to show care and concern. And to build that rapport where a patient is hopefully less likely to sue you. We generally see with certain specialties, there are some specialties where that comes much easier and other specialties where this is more difficult.
Jennifer Wiggins (21m 45s):
So obviously if you’re an ER doctor, or if you’re an urgent care physician, it’s much more difficult for you to build rapport because these are patients that are coming in and out. It’s not an established patient that you’ve had a relationship with for a long time. It’s also difficult if you’re a radiologist or a pathologist where you don’t ever see the patient’s face necessarily. So those particular examples, you have to be very conscious of any other risk management techniques you might be able to use because you can’t necessarily use the bedside manner approach as it relates to building a strong relationship with your patient. The second thing that helps reduce malpractice claims obviously is documentation. So it is hugely important that you are using appropriate, accurate, legible charting, obviously with electronic medical records.
Jennifer Wiggins (22m 32s):
Now legibility is not really an issue anymore because we’re typing instead of writing, but it’s really important that you’re documenting not only what you did, but what your thought process was as you were making those decisions. So why did you do what you did? Why did you choose option A instead of option B? Because if something were to happen and let’s say it’s five years later, you’re probably not going to remember the exact ins and outs of that interaction with that patient. So for you to be able to really thoroughly document your thinking and what made you select a versus B, what were the other factors at play will really help you down the road? In case you need to recall an interaction with a patient.
Jennifer Wiggins (23m 15s):
We actually have a defense attorney here in town. Who’s been working Malpractice for over 50 years. One of the things he actually recommends that providers do is if you ever have a situation where there’s been just kind of like that feeling, that maybe something isn’t quite right here, cause we all get that, right? Like that spidey sense of nothing really went wrong, but I just, something just is not right here. Maybe the family just kind of strikes you as they’re not satisfied. There might be an issue here, but there really hasn’t been an incident for anything in particular that you need to report. His recommendation is, is that you write a separate memo to yourself that does not go in the patient’s chart and keep that in your own personal files with every single thing that happened, what you observed, what the patient did or didn’t do.
Jennifer Wiggins (24m 4s):
Because again, while that may not be admissible in court down the road, it will help trigger your memory so that you can go back and recall, oh yeah, that’s the patient where this and this and this was happening. And it’ll just help you be a little bit sharper when you’re going back to recall what happened.
Dr. Anthony Orsini (24m 20s):
Yeah. So that’s all great advice. And you have, I think the number was 81% of all malpractice lawsuits are due to a communication breakdown. Your first goal is to prevent the suit in the first place. And that’s where that, as you said, that relationship comes true. I talk about in my workshops and by the way there Orsini Way has like three hour workshops that we do for physicians. We did them by webinar, in person to try to avoid getting into a malpractice lawsuit in the first place. So your first chance opportunity is avoid it in the first place. Build that relationship. I talk about my family doctor who practiced 50 years as a family doctor and that OB and was never sued. If you look up statistically, the chances of that happening for an OB and a family practice worked 50 or something like 0.1% and talk about documentation.
Dr. Anthony Orsini (25m 9s):
He document that on a five by nine card, but he had an ability. He delivered me and then I rotated with him as a medical student. That’s how long he practiced. But I watched him as a medical student. You walk into his office as a new patient and in five minutes you were best friends. He just had that ability to look in your eyes and smile. And you know, I joke around, I go back to Merk. God bless us all. He was an average doctor. He wasn’t the best doctor in the world, but when something went wrong, they wouldn’t sue him and things did go wrong. So that’s your first chance. Your second chance is once you are sued to make sure you have that documentation, then you have another opportunity. If a medical error does occur, how you reveal that medical error, whether you apologize how you present it, whether you reveal the medical error and a kind sincere passion, and you deliver that news correctly, or you let risk management do it while you hide in the corner, you’re more likely to get sued.
Dr. Anthony Orsini (26m 4s):
So I can’t agree with you more about the communication. The malpractice. I have a friend who went back and forth with the neurosurgeon and the neurosurgeon did some surgery on her. And she really liked him, but she was having a lot of pain afterwards and it became harder and harder for her to follow up. He wasn’t answering her calls. Finally, she demanded to be seen and he came into the office and said, this surgery was a success. I do not want you to come to my office anymore. If you’re having pain, you need to go see a pain person, but I’m done with you. Well, guess what happened? She got really angry. She fought. So my response to that is you basically asked for, you could have sat down with her and said, I’m doing everything that I can, and I’m really sorry, but I think maybe you should go to my friend who is the pain person.
Dr. Anthony Orsini (26m 52s):
So we have so many opportunities that we miss. And it’s all about learning communication. That’s what this podcast is about. Difficult Conversations and no more, is it more difficult than having to admit that there was a medical error and maybe you could comment on the Apology Laws and how that works. That’s a big thing that you need to know in your state.
Jennifer Wiggins (27m 9s):
It is it. And every state is very different. And quite frankly, every hospital system has a slightly different approach of how you, they want you to handle it. So that’s something you also need to be aware of is what is the hospital’s position? You know, there’s a lot of forward thinking, hospitals that are taking very proactive stances, right after an incident occurs to immediately engage with a patient and try to find a resolution so that it doesn’t actually escalate any further. So to know what the protocol is at your facility is really important to know what the Apology Laws in your state are, is also important, meant to take advantage of any risk management courses that you can take either independently, whether it’s through your type of services doctor or through the hospital system or your malpractice carrier, I would highly encourage you to do that, to make yourself aware of all of the other tools and resources you should be taking advantage of.
Jennifer Wiggins (27m 58s):
There’s three other smaller knit things that I wanted to point out in one of the new you already mentioned as it relates to mitigating malpractice. And that is the whole accountability issue, right? So heaven forbid something does happen. The last thing you want to do is disappear because then they know something’s wrong. So for you to disappear or for you to send in your junior, I mean, that’s the worst thing you have to possibly do instead of coming into the room and being human. And certainly we don’t want you acknowledging or admitting fault for saying I screwed anything up, but there are some things that you have parameters within the Apology Laws in particular, where you can say, I’m sorry, and you can show some sympathy and really show compassion without admitting liability.
Dr. Anthony Orsini (28m 45s):
There’s data that really suggests that by saying, you’re sorry, you’re going to avoid many malpractice losses just by saying that. And that’s where these Apology Laws come. Most of the states have some type of Apology Laws where you can at least say, I’m sorry this happened. And then there’s some states that have full Apology Laws where you can say, I’m sorry that this happened because I did this and it’s still not admissible. So you need to know which one it is.
Jennifer Wiggins (29m 6s):
That’s right. The other two things that are smaller by they’ll still think are noteworthy. One of them, you may not have as much control over, but it’s still worth knowing. And that’s kind of the collection techniques. So it is really, really important that if you have a disgruntled patient or patient that may not have had a great outcome, but they haven’t paid their bill yet, your hospital should not be badgering them to collect money. I mean, if, especially if hospitals are using like third-party collection agencies, they don’t have a clue that you’ve got a very unhappy patient. And I’m going to tell you right now, you’re going to pour gasoline on the fire. If you call them and start asking them to pay their bill and they’re not happy. So a lot of times doctors have very little control over it, but it is something you need to be aware of because if you’ve got a patient that you think is potentially red hot, you need to make sure the appropriate people know so that we’re not making that situation worse by prompting them to make a payment or saying, Hey, you need to pay that’s your overdue for that.
Jennifer Wiggins (30m 2s):
Let’s not make it worse. So that’s another important element. I think that’s worth noting. And the last thing I’ll say is in healthcare, you’ve got a lot of politics and things that sometimes go on, especially here in my hometown, we have two orthopedic practices, but worked with the two different hospital systems. You have to be very careful too, that you’re not pointing the finger at other providers, even if you know that somebody else made a mistake. The last thing you want to do is to tell your patient that your old doctor so-and-so messed this up, because guess what you just did. You just became the expert witness in that malpractice lawsuit against the doctor that you just threw under the bus.
Jennifer Wiggins (30m 43s):
So be very careful as you discuss care that may not have been appropriate with other providers, because if you give them an inch, they’ll take a mile. So be very careful. And certainly don’t put that in the medical records. Those are also admissible. So just be very careful as it relates to throwing your fellow doctors under the bus or waving the finger unnecessarily. So yeah, that’s just another little word of caution.
Dr. Anthony Orsini (31m 10s):
Yeah. And what goes around, comes around. So you want to be careful about that. And most of the time you try to remember that there are a lot of gray areas in medicine and it may not be what you would have done. So be careful about what you say, because you probably don’t even have all the facts. So there’s multiple reasons not to do that. Jen, before we leave, I want to talk about the high risk doctor. And I guess you call them high risk or brokerage. So tell me what happens to that poor doctor, whether he or she did something wrong or not, but maybe he’s in a high risk field. Been sued a couple of times settled, even though there may not have been any medical errors and now he or she finds themselves in this high risk area.
Dr. Anthony Orsini (31m 51s):
Tell me how you go about that. Someone calls you and says, Hey Jen, I need malpractice insurance. And you look at them and God, I can’t find a carrier for you. So take us through that.
Jennifer Wiggins (32m 0s):
So it happens quite a bit and it can happen for a variety of reasons. We have a weekly podcast called Malpractice Insights. They’re short little, 10 minute episodes. And we talk about everything related to Malpractice. We just did an episode on what gets a doctor non-renewed. And there are a variety of factors that come into play. So I won’t give you all of them. But a couple of the quick hitters are obviously claims. So if you’ve got a frequency issue or a severity issue, meaning either you’re getting sued a lot frequently, or you’ve had a couple of really big ones. So you’ve had a couple of limit claims where you’ve gone all the way up to your policy limits. Those two things can be red flags. And obviously can get you non-renewed. Obviously, if there’s issues of fraud, if there’s anything else that the carrier is just completely uncomfortable with, you can find yourself getting non-renewed.
Jennifer Wiggins (32m 46s):
So if that happens, your first course of action is to contact an agent or a broker to see if there’s any other carriers in the standard market that would be willing to pick you up. The reality is there might be some because every carrier has slightly different underwriting philosophies. So one carrier may be really staunchly against a certain procedure and they don’t want to write it, but another carrier might. So you can definitely want your agent to look around, to see if you have options in the standard market. If there are zero options left in the standard market, then you’re going to get put into what’s called the excess and surplus lines market or E and S market. This is a market obviously for high risk doctors, doctors who can’t find malpractice insurance, otherwise.
Jennifer Wiggins (33m 26s):
And it’s carriers that have specifically set aside to ensure this type of risk. Now, the downside is you’re going to pay more. The premiums will be higher. The coverage is not going to be as great. So where you might’ve had consent to settle with your standard market carrier, if you’re with a non-standard carrier, chances are, you’re not going to get any consent in the handling of your malpractice claims. You’re probably not going to be able to find an occurrence policy in the non-standard market. You’re only going to get a claims made policy. So other things like that, where it’s just not as robust of coverage, but hey, if you’re still insured. So not as great as coverage, a little bit higher price, but the carrier themselves is very experienced.
Jennifer Wiggins (34m 6s):
There’s a lot of carriers that write millions of millions of dollars of business. And I’m doing this for a long time. So the coverage is still good. It’s just not great. And usually when a doctor finds themselves in the E&S market, I like to think of it as like a rehab period. It’s not a permanent place where you will belong for the rest of your career. So depending on the reason why you gott non-renewed, let’s say it’s because you had a string of bad claims. If you have it put into the non-standard market, chances are, if you can go four or five years without having a claim, you can eventually move back into the standard market. So our hope is that you don’t permanently belong in E&S. We keep you there until you get your nose clean and your record looks a little bit better, or we rectified whatever the problem was.
Jennifer Wiggins (34m 50s):
And then our hope is to be able to move you back into the standard market, sometime in the future. Usually you can’t get back into the standard market any sooner than five years before, but it’s a very common 5, 6, 7 years into the E&S. If you’re now clean and everything looks good, we could probably move you back into the standard market again.
Dr. Anthony Orsini (35m 11s):
Yeah, it’s a big deal. We’ve worked with several doctors. Part of this, getting back into the standard market is showing that not only keeping your nose clean, but you’re doing everything possible to make yourself better. And as you know, a lot of these doctors are good doctors who’d maybe have a personality issue or people just take them the wrong way. Or maybe they say, don’t come back here or something like that. So nothing gives incentive for someone to improve themselves more than money. And so when the doctors find themselves paying a lot more for malpractice, they have come to us and we’ve done some communication training, even improvisational role-playing by zoom or in person. It’s actually probably Jen, the, one of the most gratifying things we do at The Orsini Way, because you really see this light bulb go off many, many times.
Dr. Anthony Orsini (35m 56s):
And they’re like, I never thought that the way I said something would rub somebody the wrong way. And they really just don’t understand. Some of it is just, I’m trying to remain professional. And I try to explain to them, you can be professional and still bond and have a good relationship with them. So anything you can do to show the standard carriers that you’re trying to improve yourself will help, right?
Jennifer Wiggins (36m 18s):
Yeah, absolutely. And they want you to be able to demonstrate growth and improvement even in the non-standard market. So that’s an important thing for you to be considering, even in those years, initially, to be able to show that you’re making a program that you’re growing, you’re changing, you’re making yourself better, but absolutely something you should be doing
Dr. Anthony Orsini (36m 38s):
Fantastic. So, all right, well that is more than enough for everybody to kind of digest at this point. And certainly I learned a lot from speaking to you last month, but also now, and especially, this is a perfect conversation for this podcast because nothing is more difficult to talk about than malpractice medical errors and the relationship with communication. So it’s a perfect episode. Not only as I said in the introduction, not only for our providers, but also for patients to kind of understand what triggers that and how they can find a doctor that they can form a relationship with. Jen, I have to apologize because usually during the pre-interview phone call, I prepare you for this question, but I forgot to do that for you.
Dr. Anthony Orsini (37m 20s):
And it’s been a busy time for us. So I’m going to apologize that I’ll ask you this standard. Last question. If you listen to podcasts, you would be prepared for this. So I’ll call it slow catching you. I know you’re busy. What is the most difficult conversation you’ve had to have in your life? And can you give some advice to people on how you navigated through that? And you could be a type of conversation. You don’t have to be specific.
Jennifer Wiggins (37m 42s):
The first one that comes to mind ironically, is somewhat related to this. And that is probably when I made the decision to leave my solid salary career of 16 years to make the leap, to go do something on my own. So to sit down with the CEO of medical protective and basically say, hey, I’m leaving. This is probably the most difficult thing I’ve had to do. And obviously if you’re jumping from something that’s solid and secure and known to jumping into the unknown. So that’s probably the most difficult one I’ve had at least in recent years.
Dr. Anthony Orsini (38m 13s):
And I would argue what we say on this podcast is that there was a difficult conversation you had before that, and that was with yourself. When you were sitting there going, do I do this or don’t I do that? I have five kids or how many you had at that point? What am I doing to my career? I’m doing really well here. As we say in this podcast, every critical moment of your life starts, with a Difficult conversation. And sometimes that conversation is with yourself. So you had to have several to make that, but it sounds like you made the right decision. You’re doing awesome. And an Aegis is doing great. And if there’s anything we can do to help you promote that. Well, of course, we’re going to put all the links in the notes and we’ll promote you as much as possible.
Dr. Anthony Orsini (38m 54s):
And what’s the best way for people to get in touch with you. If they’re listening to this and go, I need to speak to her today.
Jennifer Wiggins (38m 59s):
So you just AegisMalpractice.Com is our website address on that website. If you click the contact us or they get a quote button, you can actually schedule a 10 minute call with me, it’s got my full calendar access. So you can just pick a time that works for you. If you’d like to chat. If you’d rather just email, my email address is on there as well. If you’re just one of those doctors that loves to peruse and learn a little bit more. I mentioned the podcast than we have, which is called Malpractice Insights. That actually is a video podcast. So it’s on YouTube and it’s on apple podcast, Spotify, all the normal channels, every Wednesday, those episodes drop. But we also have the blogs if you are more of a reader with all of the exact same information. If you’re more of a reader, that’s on our website as well.
Jennifer Wiggins (39m 39s):
Then I know we mentioned earlier, the whole occurrence versus claims made, and we really didn’t get into the discussion of the differences between the two, but we have a lot of resources on our website related to that as well. So if you’re one of those doctors, that’s like, yeah, I know nothing about the differences between those two policy types. And why would I maybe pick one over the other? There are quite a few articles on our website and podcast episodes. If you’d like to make yourself available to those, those are all free.
Dr. Anthony Orsini (40m 6s):
Fantastic. Then AEGIS is AEGIS, but we’ll have this all in the show notes. Jen, thank you so much. This has been awesome. I really appreciate it.
Jennifer Wiggins (40m 15s):
Thanks so much. It’s been great.
Dr. Anthony Orsini (40m 17s):
If you enjoyed this podcast, please go ahead and hit subscribe or follow. If you’d like to get in touch with me, you can reach me at the Orsini Way dot com just to contact us or my email Drorsini@theOrsini Way.Com. This is great. This will air soon, and this is going to be a great conversation. I can’t wait for everyone to hear it. So thank you again.
Announcer (40m 37s):
If you enjoyed this podcast, please hit the subscribe button and leave a comment and review. To contact Dr. Orsini and his team, or to suggest guests for future podcast. Visit us TheOrsiniWay.com. The comments and opinions of the interviewer and guests on this podcast are their own and do not necessarily reflect the opinions and beliefs of their present and past employers or institutions.
Dr. Anthony Orsini
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