Docs Who Practice Without Proper Med-Mal Insurance; More

Wayne J. Guglielmo, MA


October 14, 2015

In This Article

Who's Liable When a Physician Goes Bare?

Doctors involved in a malpractice action who lack professional liability insurance, in whole or part, should be disciplined by the state medical board and not the courts, according to a split decision by the New Jersey Supreme Court last month. The court ruled that medical facilities that hire such doctors can be sued, however, if they haven't done their due diligence, according to a September 29th story that ran on the website of the Courthouse News Service.[1]

The ruling stems from a suit brought by New Jersey resident James Jarrell against board-certified anesthesiologist Richard Kaul, MD, and Market Street Surgical Center, in Saddle Brook, New Jersey.

On October 11, 2005, at the center, Dr Kaul performed a spinal fusion on Jarrell, who had been experiencing back pain for more than 20 years. Following the surgery, Jarrell complained of back and left-leg pain, which Dr Kaul said wasn't uncommon in a procedure of this kind. In a follow-up evaluation, Dr Kaul noted an improvement in his patient's reported back and leg pain during a heel-to-toe walking test.

But on November 29, 2005, Jerrell fell while at work, attributing the fall to his inability to lift his foot properly. A postaccident CT scan and Dr Kaul's further evaluation revealed that the fusion implant was irritating the L4 nerve root on the patient's left side. A subsequent review by neurosurgeon Alfred Steinberger, MD, confirmed Jarrell's "profound weakness" in the muscles that elevate the foot and toes, although Dr Steinberger attributed the problem to a different cause: the misplacement of the pedicle screws at two other places along the spine. With another surgeon, Dr Steinberger performed a decompression and fusion, while removing the incorrectly placed screws from the first procedure.

In September 2007, Jarrell and his wife filed a malpractice suit against Dr Kaul and Market Street Surgical Center. Later, they amended their suit to claim that, at the time of the surgery, Dr Kaul didn't have the proper medical liability insurance or a letter of credit -- in New Jersey, a minimum $500,000 bank-issued credit in lieu of malpractice insurance, typically backed by the physician's personal assets -- providing evidence of his ability to cover potential mishaps, and that the medical center hadn't taken the necessary steps to ensure that he did. The trial court dropped this part of the case, though, ruling that Dr Kaul's insurance policy wouldn't have been a relevant factor in the case anyway, because it specifically excluded coverage for spinal surgery.

The trial court found Dr Kaul guilty of malpractice and awarded the defendants $750,000. It also dismissed all claims against the medical center.

An appeals court upheld the lower court ruling, including the finding that the state medical board -- and not the courts -- should punish doctors who practice without the proper professional liability insurance. In its review of the appeal, though, the high court agreed with this lower-court finding but faulted the medical center for not making sure that "Kaul's insurance policy was comprehensive." Market Street Surgical Center, the justices said, should have taken the proper steps to ensure that the defendant was properly covered.

In a partial dissent, a high-court justice agreed with the 5-to-2 majority on the matter of the medical center's liabilities but found it "remarkable" that doctors who perform procedures for which they lack the proper insurance couldn't be sued in court for this conduct.


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