If you self-insure your workers’ compensation liability or otherwise directly control how your employees go about getting treatment for work-related injuries, make sure the medical professionals involved in your employees’ care are properly licensed and meet all requirements of their licenses. Otherwise, you may face liability for the negligent mistakes of health care practitioners.
Recent case: John Basil hurt his back at work and received chiropractic treatment for a while. His employer’s workers’ comp carrier paid for the treatments. About a year later, the pain recurred and the insurer arranged for an independent medical exam by a physician. The doctor, licensed in New Jersey, did not maintain medical malpractice insurance. At the time, the New Jersey Board of Medical Examiners didn’t require doctors who only performed independent medical exams—and did not treat patients—to carry the coverage.
Apparently, the doctor missed an obvious lump that may have been causing the discomfort. The doctor recommended physical therapy and an X-ray if things didn’t improve. By the time another doctor examined Basil, it was too late. The mass was cancerous—a stage IV sarcoma.
After Basil died, his widow sued the doctor and the workers’ comp carrier, alleging both were negligent—the doctor in failing to diagnose cancer and the carrier in hiring an alleged incompetent doctor. The doctor eventually settled.
The New Jersey Supreme Court rejected the claim against the carrier for negligent hiring, principally because at the time, the doctor wasn’t required to carry malpractice insurance. Now doctors must carry the coverage, and the court said it might have concluded otherwise if the coverage had been required at the time. (Basil, et al., v. Wolf, et al., No. A-80-2005, A-110-2006, Supreme Court of New Jersey, 2007)
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