Putting a premium on medical staffs. A novel way to insure physician liability (and loyalty)

The physician malpractice insurance crisis is having an adverse financial impact on both hospitals and their medical staffs. Innovative hospitals are exploring ways to create insurance arrangements to cover the professional liability of their medical staffs. Hospital risk managers often have theorized that if the same insurer covered both hospitals and their staff physicians, providers and their patients would benefit. These programs--often referred to as "channeling" or "channeled programs"--use a common risk management program, common claims administration, and a common claims defense for insured hospitals and their medical staffs, reducing costs, unfavorable verdicts, and, thus, premiums. Unfortunately only a few commercial carriers now offer such a program. Some hospitals and systems have therefore turned to "captive" insurance companies to provide the benefits of a channeled program. Hospitals or systems and their medical staffs can establish a captive (i.e., a controlled insurance company designed to insure its owners and their affiliates) either offshore (typically in a tax-free jurisdiction such as the Cayman Islands, Barbados, or Bermuda) or onshore (typically in a state with facilitating legislation). The Tax Reform Act of 1986, together with the Liability Risk Retention Act of 1986, generally tips the regulatory balance in favor of onshore captives by allowing these entities to operate as risk retention groups (RRGs).