Concierge Medicine Company Found Liable for Doctor’s Malpractice

The practice of “concierge” medicine has grown recently, thanks to doctors who are frustrated with the intrusive bureaucracy involved in the usual delivery of medical care, and patients with enough money to pay annual retainers for better access to them.

Now, this new-ish form of medical business is on the paying side of what is believed to be the first malpractice jury assessment. Last month, KaiserHealthNews.org (KHN) reported on a lawsuit against MDVIP, the nation’s largest concierge medicine practice, and the jury’s $8.5 million verdict for the plaintiff.

MDVIP, which includes nearly 800 affiliated physicians in 41 states, was founded 15 years ago. Patients pay a $1,500 annual membership fee in exchange for faster service and more attention from their primary care doctor, but the fee doesn’t necessarily cover the full costs of care; as usual, those depend on each patient’s problem, and his or her insurance coverage. Some concierge doctors don’t accept insurance.

In the lawsuit, which was tried in Florida, MDVIP was found liable for the negligence of one of its physicians, who was sued by the patient’s family for misdiagnosing her leg pain. Despite the pain getting progressively worse, the physician and other MDVIP-affiliated staff repeatedly misdiagnosed the cause. The patient was referred to orthopedists who said they had not gotten her medical records or learned about the worsening symptoms.

With the benefit of that information, her serious circulation problem might have been discovered before it got so bad that her leg had to be amputated.

In addition to finding the MDVIP liable for that disastrous outcome, the jury also decided that it had falsely advertised the nature of its “exceptional” care.

As explained by KHN, “Industry experts say the ruling is significant because it shows concierge companies can be held liable for the care provided by their contracted doctors. The companies typically argue they do not actually provide care but merely act as brokers between doctors and patients.”

An official with the American Academy of Private Physicians, a trade group of concierge doctors, told KHN that the judgment shows that concierge companies “have a legal risk that everyone assumed did not exist.”

The primary care doctor had settled a lawsuit with the patient’s family before the MDVIP trial. The company had claimed that because its physicians were not employees, but contractors, it was not responsible for their actions. Doctors affiliated with the company pay it fees for marketing, branding and other business development services.

One of the plaintiff’s attorneys said the verdict will ensure that concierge companies exercise more oversight about the doctors with whom they affiliate, and that they will be more careful about their advertising claims.

Another attorney who practices health-care law but who was not involved in the MDVIP case called the verdict “shocking,” and agreed that it would prompt concierge companies to examine their promotional claims.

But MDVIP plans to appeal the decision, and one consultant for the concierge medical industry was skeptical that this single verdict, significant though it is, will have a long-term effect.

KHN estimates that 6,000 doctors in the U.S. have adopted concierge-style practices in the last 15 years, and the trade group said the number has doubled in the last five years.

An executive with the concierge trade group told KHN that the industry generally has a good track record, noting that although concierge physicians are not immune from malpractice suits, they’re less likely to be sued because they spend more time with patients than most doctors.

He has a point; as we’ve written, strong doctor-patient communication is key to good care, and you can’t communicate well when you’re treating by stopwatch. In order to have sufficient time for good care, concierge physicians generally limit the number of patients they treat; MDVIP’s limit is 600 compared with a few thousand for a traditional practice.

So money – retainer fees – can buy more time with the doctor. But shouldn’t everybody, not just those who can afford it, be able to take the time necessary to improve and maintain their health?

Patrick Malone & Associates, P.C. listed in Best Lawyers Rated by Super Lawyers Patrick A. Malone
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