What You Absolutely Need to Know About Tail Coverage

Leigh Page

February 10, 2020

A 28-year-old pediatrician working in a large group practice in California found a new job in Pennsylvania. The job would allow her to live with her husband, who was a nonphysician.

On her last day of work at the California job, the practice's office manager asked her, "Do you know about the tail coverage?"

He explained that it is malpractice insurance for any cases filed against her after leaving the job. Without it, he said, she would not be covered for those claims.

The physician (who asked not to be identified) had very little savings and suddenly had to pay a five-figure bill for tail coverage. To provide the extra malpractice coverage, she and her husband had to use savings they'd set aside to buy a house.

Getting tail coverage, known formally as an extended reporting endorsement, often comes as a complete and costly surprise for new doctors, says Dennis Hursh, Esq, a healthcare attorney based in Middletown, Pennsylvania, who deals with physicians' employment contracts.

"Having to pay for a tail can disrupt lives," Hursh said. "A tail can cost about one third of a young doctor's salary. If you don't feel you can afford to pay that, you may be forced to stay with a job you don't like."

Most medical residents don't think about tail coverage until they apply for their first job, but last year, residents at Hahnemann University Hospital in Philadelphia got a painful early lesson.

In the summer, the hospital went out of business because of financial problems. Hundreds of medical residents and fellows not only were forced to find new programs but also had to prepare to buy tail coverage for their training years at Hahnemann.

"All the guarantees have been yanked out from under us," said Tom Sibert, MD, a former internal medicine resident at the hospital, who is now finishing his training in California. "Residents don't have that kind of money."

Hahnemann trainees have asked the judge in the bankruptcy proceedings to put them ahead of other creditors and to ensure their tail coverage is paid. As of early February, the issue had not been resolved.

Meanwhile, Sibert and many other former trainees were trying to get quotes for purchasing tail coverage. They have been shocked by the amounts they would have to pay.

How Tail Coverage Works

Medical malpractice tail coverage protects from incidents that took place when doctors were at their previous jobs but that later resulted in malpractice claims after they had left that employer.

One type of malpractice insurance, an occurrence policy, does not need tail coverage. Occurrence policies cover any incident that occurred when the policy was in force, no matter when a claim was filed ― even if it is filed many years after the claims-filing period of the policy ends.

However, most malpractice policies ― as many as 85%, according to one estimate ― are claims-made policies. Claims-made policies are more much common because they're significantly less expensive than occurrence policies.

Under a claims-made policy, coverage for malpractice claims completely stops when the policy ends. It does not cover incidents that occurred when the policy was in force but for which the patients later filed claims, as the occurrence policy does. So a tail is needed to cover these claims.

Physicians in all stages of their career may need tail coverage when they leave a job, change malpractice carriers, or retire.

But young physicians often have greater problems with tail coverage, for several reasons. They tend to be employed, and as such, they cannot choose the coverage they want. As a result, they most likely get claims-made coverage. In addition, the job turnover tends to be higher for these doctors. When leaving a job, the tail comes into play. More than half of new physicians leave their first job within 5 years, and of those, more than half leave after only 1 or 2 years.

Young physicians have no experience with tails and may not even know what they are. "In training, malpractice coverage is not a problem, because the program handles it," Hursh said. Accreditation standards require that teaching hospitals buy coverage, including a tail when residents leave.

So when young physicians are offered their first job and are handed an employment contract to sign, they may not even look for tail coverage, says Hursh, who wrote The Final Hurdle, a Physician's Guide to Negotiating a Fair Employment Agreement. Instead, "young physicians tend to focus on issues like salary, benefits, and signing bonuses," he said.

Hursh says the tail is usually the most expensive potential cost in the contract.

There's no easy way to get out of paying the tail coverage once it is enshrined in the contract. The full tail can cost five or even six figures, depending on the physicians' specialty, the local malpractice premium, and the physician's own claims history.

Can You Negotiate Your Tail Coverage?

Negotiating tail coverage in the employment contract involves some familiarity with medical malpractice insurance and a close reading of the contract. First, you have to determine that the employer is providing claims-made coverage, which would require a tail if you leave. Then you have to determine whether the employer will pay for the tail coverage.

Often, the contract does not even mention tail coverage. "It could merely state that the practice will be responsible for malpractice coverage while you are working there," Hursh said. Although it never specifies the tail, this language indicates that you will be paying for it, he says.

Therefore, it's wise to have a conversation with your prospective employer about the tail. "Some new doctors never ask the question, what happens if I leave? Do I get tail coverage?" said Israel Teitelbaum, an attorney who is chairman of Contemporary Insurance Services, an insurance broker in Silver Spring, Maryland.

Talking about the tail, however, can be a touchy subject for many young doctors applying for their first job. The tail matters only if you leave the job, and you may not want to imply that you would ever want to leave. Too much money, however, is on the line for you not to ask, Teitelbaum says.

Even if the employer verbally agrees to pay for the tail coverage, experts advise that you try to get the employer's commitment in writing and have it put it into the contract.

Getting the employer to cover the tail in the initial contract is crucial, because once you have agreed to work there, "it's much more difficult to get it changed," Teitelbaum said. However, even if tail coverage is not in the first contract, you shouldn't give up, he says. You should try again in the next contract a few years later.

It's never too late to bring [tail coverage] up. Israel Teitelbaum, JD

"It's never too late to bring it up," Teitelbaum said. After a few years of employment, you have a track record at the job. "A doctor who is very desirable to the employer may be able to get tail coverage on contract renewal."

Coverage: Large Employers vs Small Employers

Willingness to pay for an employee's tail coverage varies depending on the size of the employer. Large employers ― systems, hospitals, and large practices ― are much more likely to cover the tail than small and medium-sized practices.

Large employers tend to pay for at least part of the tail because they realize that it is in their interest to do so. Since they have the deepest pockets, they're often the first to be named in a lawsuit. They might have to pay the whole claim if the physician did not have tail coverage.

However, many large employers want to use tail coverage as a bargaining chip to make sure doctors stay for a while at least. One typical arrangement, Hursh says, is to pay only one fifth of the tail if the physician leaves in the first year of employment and then to pay one fifth more in each succeeding year until year five, when the employer assumes the entire cost of the tail.

Smaller practices, on the other hand, are usually close-fisted about tail coverage. "They tend to view the tail as an unnecessary expense," Hursh said. "They don't want to pay for a doctor who is not generating revenue for them any more."

Traditionally, when physicians become partners, practices are more generous and agree to pay their tails if they leave, Hursh says. But he thinks this is changing, too ― recent partnership contracts he has reviewed did not provide for tail coverage.

Times You Don't Need to Pay for Tail Coverage

Even if you're responsible for the tail coverage, your insurance arrangement may be such that you don't have to pay for it, says Michelle Perron, a malpractice insurance broker in North Hampton, New Hampshire.

For example, if the carrier at your new job is the same as the one at your old job, your coverage would continue with no break, and you would not need a tail, she says. Even if you move to another state, your old carrier might also sell policies there, and you would then likely have seamless coverage, Perron says. This would be handy if you could choose your new carrier.

Even when you change carriers, Perron says, the new one might agree to pick up the old carrier's coverage in return for getting your business, assuming you are an independent physician buying your own coverage. The new carrier would issue prior acts coverage, also known as nose coverage.

Older doctors going into retirement also have a potential tail coverage problem, but their tail coverage premium is often waived, Perron says. The need for a tail has to do with claims arising post retirement, after your coverage has ended. Typically, if you have been with the carrier for at least 5 years and you are age 55 or older, your carrier will waive the tail coverage premium, she says.

However, if the retired doctor starts practicing again, even part time, the carrier may want to take back the free tail, she says. Some retired doctors get around this by buying a lower-priced tail from another company, but the former carrier may still want its money back, Perron says.

Can You Just Go Without Tail Coverage?

What happens if physicians with a tail commitment choose to wing it and not pay for the tail? If a claim was never made against them, they may believe that the expense is unnecessary. The situation, however, is not so simple.

Some states require having tail coverage. Malpractice coverage is required in seven states, and at least some of those states explicitly extend this requirement to tails. They are Colorado, Connecticut, Kansas, Massachusetts, New Jersey, Rhode Island, and Wisconsin. Eleven more states tie malpractice coverage, perhaps including tails, to some benefit for the doctor, such as tort reform. These states include Indiana, Nebraska, New Mexico, New York, and Pennsylvania.

Many hospitals require tail coverage for privileges, and some insurers do as well. In addition, Perron says a missing tail reduces your prospects when looking for a job. "For the employer, having to pay coverage for a new hire will cost more than starting fresh with someone else," she said.

Still, it's important to remember the risk of being sued. "If you don't buy the tail coverage, you are at risk for a lawsuit for many years to come," Teitelbaum said.

Doctors should consider their potential lifetime risk, not just their current risk. Although only 8% of doctors younger than age 40 have been sued for malpractice, that figure climbs to almost half by the time doctors reach age 55.

The risks are higher in some specialties. About 63% of general surgeons and obstetrician-gynecologists have been sued.

Many of these claims are without merit, and doctors pay only the legal expenses of defending the case. Some doctors may think they could risk frivolous suits and cover legal expenses out of pocket. An American Medical Association (AMA) survey showed that 68% of closed claims against doctors were dropped, dismissed, or withdrawn. It said these claims cost an average of more than $30,000 to defend.

However, Teitelbaum puts the defense costs for so-called frivolous suits much higher than the AMA, at $250,000 or more. "Even if you're sure you won't have to pay a claim, you still have to defend yourself against frivolous suits," he said. "You won't recover those expenses."

Even if you're sure you won't have to pay a claim, you still have to defend yourself against frivolous suits. Israel Teitelbaum, JD

How to Lower Your Tail Coverage Cost

Physicians typically have 60 days to buy tail coverage after their regular coverage has ended. Specialized brokers such as Teitelbaum and Perron help physicians look for the best tails to buy.

The cost of the tail depends on how long you've been at your job when you leave it, Perron says. If you leave in the first 1 or 2 years of the policy, she says, the tail price will be lower, because the coverage period is shorter.

Usually the most expensive tail available is from the carrier that issued the original policy. Why is this? "Carriers rarely sell a tail that undercuts their retail price," Teitelbaum said. "They don't want to compete with themselves, and in fact doing so could pose regulatory problems for them."

Instead of buying from their own carrier, doctors can purchase stand-alone tails from competitors, which Teitelbaum says are 10% to 30% less expensive than the policy the original carrier issues. However, stand-alone tails are not always easy to find, especially for high-cost specialties such as neurosurgery and Ob/Gyn, he says.

Some physicians try to bring down the cost of the tail by limiting the duration of the tail. You can buy tails that only cover claims filed 1 to 5 years after the incident took place, rather than indefinitely. These limits mirror the typical statute of limitations ― the time limit to file a claim in each state. This limit is as little as 2 years in some states, though it can be as long as 6 years in others.

However, some states make exceptions to the statute of limitations. The 2- to 6-year clock doesn't start ticking until the mistake is discovered or, in the case of children, when they reach adulthood. "This means that with a limited tail, you always have risk," Perron said.

And yet some doctors insist on these time-limited tails. "If a doctor opts for 3 years' coverage, that's better than no years," Teitelbaum said. "But I would advise them to take at least 5 years, because that gives you coverage for the basic statute of limitations in most states. Three-year tails do yield savings, but often they're not enough to warrant the risk."

Another way to reduce costs is to lower the coverage limits of the tail. The standard coverage limit is $1 million per case and $3 million per year, so doctors might be able to save money on the premium by buying limits of $200,000/$600,000. But Teitelbaum says most companies would refuse to sell a policy with a limit lower than that of the expiring policy.

Further ways to reduce the cost of the tail include buying tail coverage that doesn't give the physician the right to approve a settlement or that doesn't include legal fees in the coverage limits. But these options, too, raise the physician's risks. Whichever option you choose, the important thing is to protect yourself against costly lawsuits.

Leigh Page is a freelance healthcare writer from Chicago, Illinois.

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