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Malpractice for Doctors

June 20, 2017

Medical malpractice occurs when improper treatment by a doctor or health care professional results in injury, damage, or harm to a patient. There does not have to be forethought by the doctor to do harm to the patient. Simply, a medical error that causes harm to a patient can result in medical malpractice.

In Florida, malpractice is simply a breach of the “prevailing professional standard of care”. This standard of care is defined by statute as “that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.”

All types of physicians, surgeons, specialists as well as nurses, medical assistants, hospitals, dentists, and other healthcare professionals can be sued for medical malpractice.

While the rules about whether medical malpractice has occurred vary by state, there are some basic elements that apply in all medical malpractice cases. In order to prove that medical malpractice has occurred, a claimant must be able to show all of the following:

A relationship existed between the patient and the physician (duty). There must be an actual relationship between the health care professional and the patient in order to file a claim for medical malpractice. The doctor therefore owes the patient a duty to act within the “standard of care”, meaning reasonably and appropriately. You cannot, for instance, bring a suit against a doctor for advice you heard at a cocktail party.

Your doctor was negligent (breach). You cannot sue a doctor just because you are mad at him or her because you did not receive your desired results. The doctor must have deviated from or fallen below the accepted standard of care and thereby breached the duty owed to the patient. There must be actual negligence in connection with the doctor’s diagnosis or treatment of you, his patient. You must be able to prove that your doctor caused you harm in a way that a reasonably skilled doctor, in the same circumstance, would not have caused.

Your doctor’s negligence caused the injury (Causation). Usually, a patient needs to bring in a medical expert to testify that it was the breach of the standarad of care by the treating doctor that caused harm to the patient. Many times, an already sick patient has an unfortunate outcome after being treated by the doctor. It was not the doctor’s fault that the outcome was negative, but rather the fact that the patient was already sick or injured. The negligence or incompetence of the doctor must have caused or contributed to the injury for a lawsuit to be brought against the doctor.

The doctor’s performance led to specific and measurable damages (Damages). The patient must have sustained harm because of the doctor’s error. If the doctor made a medical error and there was no harm to the patient, there are no damages and no basis for a medical malpractice lawsuit. The followiing are specific damages for which a patient can sue:

  • physical pain
  • mental anguish
  • additional medical bills, and
  • loss of earnings or the capacity to earn a living

Types of medical malpractice claims

While there are many instances that can lead to medical malpractice, from operating on the wrong limb to failing to spot cancer, most medical malpractice claims fall into the following basic categories:

Error in diagnosis: If a reasonably competent doctor would have discovered the cause of illness or injury and your doctor did not, a medical malpractice claim can be made against the doctor. Examples of diagnostic error include cases where an infection is not caught and worsens into sepsis; failure to diagnose small benign tumors that spread; failure to spot abnormal laboratory tests that worsen; failure to respond to abnormal x-rays or CT scans, and undiagnosed diseases.

Failure to disclose risk: By using an informed consent process, a treating physician can warn patients of the possible and probable risks associated with treatment. Failure to disclose risk, and the resultant unsuspected injury or sickness, can be the basis of a medical malpractice claim, especially if the patient would have foregone treatment if the risk were known.

Improper treatment of the patient: If the doctor performs treatment in an incompetent manner, a lawsuit can be brought. Even if the selected treatment was the proper one, but it is performed in an incompetent manner, malpractice can result.

Medical malpractice claims fall under special rules in most states. These include time limits for filing a claim, the necessity of bringing in an expert witness, and bringing the claim before a medical review panel prior to filing an actual malpractice claim.

John Gracey Backer, CPA

John Gracey Backer, CPA, is the Treasurer of Gracey-Backer, Inc., an Insurance Agency in Delray Beach, Florida specializing in All Lines of Malpractice, Professional and Personal Insurance for the Healthcare Provider. He can be contacted at 800-272-6055 ext 128, or at

June 6, 2017

The National Council on Compensation Insurance (NCCI) sets the rates for Florida Workers’ Compensation insurance, based on the likelihood of injury and resultant medical costs. The cost of Florida Workers’ Compensation Insurance is based on three primary factors:

  • The type of work the employees do;
  • The gross payroll for all employees, including salaries, wages, bonuses, commissions and draws against commissions, plus holiday, vacation and sick pay;
  • The state where the business is located;

Premiums for Florida workers’ compensation insurance are calculated by the following formula:
Payroll (per $100) X Classification Rate X Experience Modifier = Premium

Sole proprietors are excluded from Florida Workers’ Compensation Insurance coverage unless they request to be included. Corporate officers are automatically covered by the Florida Workers’ Compensation policy unless they request to be excluded.

The simplest way to calculate the annual premium for Florida Workers’ Compensation is to multiply the annual payroll by the rate classification.

The 2017 Florida Workers Compensation Classification Rate for a physician, oral surgeon or dentist in Florida is $.48 per $100 of payroll.

As an aside, Florida Workers’ Compensation Insurance rates increased by 14.5% in December 2016, in response to the overturning of two court rulings:

The Florida Supreme Court ruling on April 28, 2016 stated that the attorney fee schedule that was passed in 2009 was unconstitutional as a violation of due process in the case of Marvin Castellanos v. Next Door Company, et. al.

Also, on June 9, 2016, The Florida Supreme Court issued an opinion in the case of Bradley Westphal vs. City of St. Petersburg, etc, et al declaring the 104-week limitation on temporary total disability benefits unconstitutional.

Because Gracey-Backer, Inc. insures over 2,000 physicians, surgeons, oral surgeons, and dentists in Florida, we were able to use that leverage as bargaining power and we created an exclusive workers’ compensation insurance dividend program. Our exclusive workers compensation insurance dividend program for Florida healthcare providers offers a guaranteed 10% dividend and up to a potential 30% dividend on your Workers’ Compensation Insurance, based on your individual loss experience. You are not grouped with other practices, and therefore are not hurt by their claims. That’s 30% that goes right to your bottom line.

Call us today to learn more about Workers’ Compensation Insurance for Florida physicians, surgeons, oral surgeons and dentists.

Barbara Gracey Backer

Barbara Gracey Backer is the Vice-President of Gracey-Backer, Inc., an Insurance Agency in Delray Beach, Florida specializing in All Lines of Professional and Personal Insurance. She may be contacted at 800-272-6055 X118 or at

May 23, 2017

The State of Florida has as a core belief that injured workers must have some form of relief if they are injured or become ill as the result of their workplace environment. In keeping with this objective, a Florida business needs to purchase a workers’ compensation insurance policy as follows. If:

  • The business is in an industry other than construction and it has four (4) or more employees, full-time or part-time (Corporate officers that have correctly filed exemptions with the state do not count as employees).
  • The business is in the construction industry and has one (1) or more employees (Corporate officers that have correctly filed exemptions with the state or a member of a limited liability company do not count as employees).
  • You are a farmer and have more than five (5) regular employees and/or twelve (12) or more other workers for seasonal agricultural labor lasting thirty (30) days or more.

If a Florida business cannot show proof of Workers’ Compensation insurance coverage, the State will seek civil enforcement. Specifically, the Florida business will be subject to a penalty equal to two times the amount the business should have paid within the preceding two year period.

If an employer commits one of the following infractions, a Stop-Work-Order (SW0) will be issued:

  • The employer understates payroll in an attempt to reduce the Workers’ Compensation insurance premium;
  • An employer misrepresents the employee’s duties in an effort to reduce the workers’ compensation insurance classification;
  • An employer otherwise attempts to avoid paying Workers’ Compensation insurance premiums.

We are finding that many small businesses in Florida are facing fines and penalties as described above because Florida state investigators are “popping in” to their offices unannounced and discovering that they don’t carry Workers’ Compensation insurance.

Call our offices at 1-800-272-6055 for more information on our Workers’ Compensation dividend program for healthcare providers, which provides a 30% dividend if no losses and guarantees a 10% dividend even with losses.

David C. Backer

David C. Backer, of Gracey-Backer, Inc., an Insurance Agency in Delray Beach, Florida specializing in All Lines of Malpractice, Professional and Personal Insurance. He can be contacted at 800-272-6055 ext 114, or at

April 25, 2017

It seems like we are getting calls every day from physician and dental offices which are facing fines and penalties because investigators discover that they don’t carry Florida Workers’ Compensation Insurance. State investigators conduct routine job-site inspections of physician and dental offices to ensure compliance with the Florida Workers’ Compensation law. When a physician or dentist employer is operating without the required Workers’ Compensation coverage, civil enforcement action is taken immediately. According to Workers’ Compensation fraud investigators with the State of Florida, these physician and dental practices face hefty fines and penalties for not carrying Workers’ Compensation coverage for their employees. It is illegal in the state of Florida for physician or dental practices to not carry Workers’ Compensation insurance if required.

A physician or dentist is required to carry Workers’ Compensation Insurance if:

  • They have four (4) or more employees, full-time or part-time. An exempted corporate officer does not count as an employee.

If you, as a physician or dental employer, are inspected and cannot show proof of Workers’ Compensation coverage, civil enforcement action is taken. You will be subject to a Woorkers’ Compensation penalty equal to two times the amount you should have paid within the preceding two year period (based on your Workers’ Comp code). The fine is usually required to be paid within 90 days and some payment plans are available. Additionally, a Stop-Work Order (SWO) may also be issued if a physician or dental employer:

  • Understates or conceals payroll in an attempt to reduce the Workers’ Compensation premium;
  • Misrepresents or conceals employee duties in an effort to secure a lower Workers’ Compensation physician or dental classification;
  • Otherwise attempts to avoid paying workers’ compensation premiums.

Remember that it is against the Florida Workers’ Compensation law for a physician or dental employer to:

  • Work without Workers’ Compensation Insurance when required to do so;
  • Work in violation of a Stop-Work Order;
  • Make a false statement for the purpose of obtaining Workers’ Compensation insurance coverage or to reduce Workers’ Compensation premiums;
  • Fail to report an injury to the Workers’ Compensation insurance carrier;
  • Discharge or threaten to discharge an employee for filing or attempting to file a Workers’ Compensation claim;
  • Deduct the Workers’ Compensation premium from an employee’s pay;
  • Misclassify an employee as an independent contractor for the purpose of avoiding paying the proper Workers’ Compensation premium.

A Florida Workers’ Compensation policy can be issued in as little as 24 hours. Contact us today and avoid costly penalties and possible felony charges.

December 20, 2016

With many different medical malpractice insurance companies vying for your business, how does a healthcare professional choose the best company for his or her particular needs?

We suggest that a physician or surgeon use an independent agent with experience in this specialized type of insurance. Through the years, companies have come in and out of the Florida market. Rates have risen and fallen. It is important to choose a strong malpractice carrier who can carry you through the ups and downs of the marketplace.

The financial strength of your insurance carrier is an extremely important consideration. A.M. Best, Inc. is the most widely respected rating agency for the insurance industry. It basically issues financial strength ratings measuring an insurance company’s ability to pay claims. An A.M. Best rating of “A-“ or better is preferable when choosing a medical malpractice insurance company.

Obviously, the premium charged by the medical malpractice insurance company is a very important component of the decision. It is important to delve a little deeper if a premium is too much lower than the competition. We have seen carriers charge too little to gain the business and then either raise the premium later or leave the marketplace altogether.
Medical malpractice insurance carriers offer varying degrees of premium discounts for the following:

  • New practitioners
  • Part-time practice
  • Completion of a risk management course
  • Claims-free practice

Be sure to take advantage of these discounts.

A medical malpractice insurance agent who specializes in this complicated form of insurance and who represents a wide range of carriers can help you find the best company for your particular needs.

If you are interested in learning more about medical malpractice insurance, or to receive a no obligation quote, please contact us at 1-800-272-6055.

David C. Backer

David C. Backer, of Gracey-Backer, Inc., an Insurance Agency in Delray Beach, Florida specializing in All Lines of Malpractice, Professional and Personal Insurance. He can be contacted at 800-272-6055 ext 114, or at

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