Most emergency physicians carry malpractice insurance limits of one million dollars per claim (or occurrence) and three million dollars in the aggregate in any one policy year, in states without statutory dollar limits on malpractice claims. Some states have an insurance fund which provides compensation to injured patients, or have statutory limits on malpractice liability, which allow emergency physicians to maintain lower coverage limits.

As hospital-based physicians, emergency practitioners are rarely isolated defendants in malpractice actions. When an emergency physician is sued, the hospital and/or contract group is typically also included in the litigation. Although the emergency physician may be labeled an independent contractor, the plaintiff’s attorney may attempt to include the hospital and group through allegations of agency. These issues must be litigated on a case by case basis, and the applicable law varies among the states. To the extent that agency can be proven, the group and/or hospital may have to contribute to the judgement or settlement. In addition to the agency theory, the plaintiff's attorney will often attempt to keep the group and hospital in the case by alleging a theory of primary liability against the group (e.g. negligent hiring or retention) or the hospital (e.g. negligent credentialing, nursing staff negligence).

Malpractice judgments against emergency physicians exceeding one million dollars are unusual, but definitely do occur. The group and hospital typically contribute to the settlement agreement or jury verdict, based upon one of the theories of liability outlined above. The result is that the one million per occurrence is widely recommended as adequate coverage. However, the Contractor must closely monitor this issue over time. Statistics demonstrate that the size of judgments continue to rise, although this has been offset to some degree by state tort reform.

The three million dollar aggregate is also widely recommended and, based on general experience among emergency physicians, seems reasonable. With that limit, the Contractor could sustain three judgments of one million dollars each, six judgments of five hundred thousand dollars each, etc., per policy year. The emergency physician moving into a new state would be prudent to ask his or her attorney for advice on malpractice conditions and recommended limits in the jurisdiction.

If the emergency physician’s malpractice coverage is obtained by a contract group, the insurance company may quote a third number, which is the annual group aggregate, (e.g., $1 million/$3 million/$10 million). The third number represents the total amount the insurance company will pay in malpractice costs for one policy year. Therefore, if the group has used the full 10 million in a policy year, there may be no remaining coverage for a subsequent judgment or settlement. The emergency physician should be aware of how many physicians are covered under the group's aggregate. If the group is a modestly sized single hospital entity, the $10 million might suffice. If the Group is a growing multi-hospital entity, the $10 million cap might be inadequate.