The territory’s doctors have been left vulnerable to law suits by the government’s failure to establish a malpractice trust fund while residents and their attorneys wait months to collect on the settlements they’ve been awarded, say lawyers who prosecute such cases.
A 1993 law requires the establishment of a Medical Malpractice Risk Management Trust Fund for uninsured doctors, to be managed by a licensed broker. Lawyers say, however, the fund has never been created and malpractice settlements, which are managed by the Health Department's Risk Manager Dr. Seshagiri Alla, are being paid out of the government's general fund.
Doctors' contributions to the trust fund are apparently being deposited into the often nebulous general fund.
"There is no trust fund. There never has been a trust fund," said Attorney Lee Rohn, who prosecutes malpractice suits. "It exposes doctors to personal liability. If there's a judgment against a doctor, and there's no fund and people aren't paid, the court could end up taking the doctor's house."
Last week, Alla referred questions about the fund to Commissioner of Health Wilbur Callendar, who did not return two phone messages; thus, it could not be determined how much doctors have paid into the fund or how many participate.
A motion filed by an attorney representing the government in a recent malpractice settlement, however, seems to prove Rohn's assertions.
"On information and belief, the Medical Malpractice Risk Management Trust Fund has never been established," Attorney Richard Knoepfel wrote in a June 2 response. "Dr. Alla has informed the undersigned that in the past few years in which he has been director, all payments of counsel fees, expenses, settlements and judgments have been paid by submitting vouchers to the Department of Finance and receiving checks issued by that department."
Knoepfel's motion also confirms the destination of doctors' contributions.
"Dr. Alla further advises us that all contributions to the 'Fund' have been forwarded to the Department of Finance where he believes a separate ledger sheet has been maintained," Knoepfel wrote.
A separate ledger notwithstanding, the unrestrained use of the general fund by recent administrations to pay all sorts of expenses, coupled with the government's cash crisis, makes many doctors nervous.
"The question a lot of doctors have, especially with the general fund being broke, is what will happen when the government doesn't make good on payments in the future," said Dr. Frank Odlum, a general surgeon and president of the Medical Staff at Roy Schneider Hospital.
"It's a problem. It leaves us out in the open," he continued. "No one is going to practice medicine in a litigious society without protection. You end up practicing preventative medicine rather than doing what you think is right."
Some doctors may be forced to raise their fees in order to pay for individual malpractice coverage.
The depositing of malpractice contributions into the general fund has also led some to wonder if those funds are being used for malpractice settlements or if they are used by the administration to meet payroll and other unrelated obligations.
Earlier this year, it was revealed child support payments made by fathers to the Paternity and Child Support Division were gobbled up into the general fund and vanished before they were sent to the mothers who were the rightful recipients. Most mothers eventually received payment months after the money was sent to the government.
Attorney Felice Quigley, who also prosecutes malpractice cases, said the absence of a dedicated fund causes similar delays in residents receiving the money they have been awarded in successful law suits.
In one case, a client waited six months for a $20,000 settlement, she said.
"We shouldn't have to file motion after motion to enforce the settlement agreements and collect money. In the past year, I've filed four motions to compel a settlement, which is ridiculous," Quigley said.
"These malpractice settlements have to be paid out of a separate fund because people are in dire need of the money to pay for further medical expenses," she said.
Physicians simply have to protect themselves considering the government has failed to dedicate a fund and people will continue to sue for malpractice, Quigley said.
"If I was a physician in the Virgin Islands, I would obtain my own malpractice insurance," she said. "There could well be a real threat to physicians individually if the government does not take steps to comply with the law."
