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For Whom the Bell Tolls
“Send
not to ask for whom the bell tolls, it tolls for thee.”
—John Donne
A Series of Essays on the Texas Medical Liability Litigation Crisis
Robert W. Kottman, MD, FACEP
Vice Chair, Socio-Economics & Legislative Committee
Bexar County Medical Society
Essay #1 “Enemy At the Gates”
The number and severity of medical malpractice claims in Texas, and the
nation, has escalated dramatically (and dangerously) over the past ten years,
especially in the last 4 years. Concomitant with these increases has been a severe
increase in medical liability insurance premium rates, coupled to
ever-decreasing numbers of malpractice insurers willing to write policies in
Texas. Some Texas physicians have been dropped by their insurance carriers
and been unable to obtain insurance commercially available. They have been
forced to resort to obtaining liability insurance from the Texas Joint
Underwriting Association (the insurer of last resort, for physicians who are
otherwise unable to obtain medical liability insurance—and whose premiums are
far higher than those of “commercial” liability insurers). As of January,
2002, the number of Texas physicians insured by Texas JUA had risen from 137
in 2000 to 528 in April, 2002. Despite the claims of the plaintiff bar, the
current medical liability crisis has not arisen as a result of increasing
cases of medical negligence, “bad doctors”, nor medical liability insurers’
losses in the stock market. The main factor in causation of this crisis is
the increasing frequency and severity of medical malpractice complaints,
claims and lawsuits.
According to the Insurance Information Institute, medical malpractice
allegations are only one of multiple areas which have made the American civil
liability system cost twice as much as that of any other industrialized
nation. According to Tillinghast in 1950, the American civil liability system
cost 0.6% of the Gross Domestic Product. In 1970, civil liability cost 1.4%
of the Gross Domestic Product. In 1999, the American civil liability system
cost 2% of Gross Domestic Product, or $161 billion. In 1950, tort costs
equaled $12 per US citizen. In 2000, tort costs per US citizen equaled $636.
Texas is not unique in suffering from a medical liability litigation crisis.
In New York state, for all medical specialties, the average medical
malpractice jury award increased from $1.8 million in 1994 to $5.6 million in
1999. In 2001, the average medical liability insurance premium (for $1
million in coverage) for Long Island neurosurgeons was $155,000. In Florida
in 2001, the statewide average premium for liability insurance (for $1
million in coverage) for OB-GYNs was over $100,000. In Dade County (Miami)
the average OB-GYN premium in 2001 was over $200,000. This compares to an
average premium in 2000 for Miami OB-GYNs of $158,000. In California,
according to the Medical Underwriters of California, the average medical
malpractice jury award rose from $2 million in 1999 to $2.9 million in 2000.
California juries awarded more than $1 million in 28 malpractice lawsuits in 1993,
and in 2000 they awarded more than $1 million in 39 malpractice lawsuits.
The national average for medical malpractice jury awards (physician +
hospital, combined) has risen from $1.95 million in 1993 to $3.49 million in
1999. The national average medical malpractice jury award from 1993-1999
increased by 79%, according to Jury Verdict Research (a database of plaintiff
and defense verdicts and settlements) of Horsham, Pennsylvania.
St. Paul Insurance Company, the nation’s largest medical malpractice
insurance carrier, has announced that it is withdrawing from the medical
malpractice insurance market and will abandon over 40,000 US physicians (in
45 states, including Texas) in 2001. This decision was reached as a result of
$940 million in losses for St. Paul’s medical liability division in 2001. St.
Paul insurance paid 27 jury awards of over $1 million in 1999 and 54 claims
of over $1 million in 2000. A company spokesman stated, in an interview with
the “Las Vegas Sun, “We made the decision to exit medical malpractice because
of the huge losses we have incurred in this line over the past number of
years on a national basis.” Andrea Wood, another spokesperson for St. Paul,
stated in an interview with the “McAllen Monitor” on April 4, 2002, “We’ve
seen the loss trends escalate. A large part of that are the jury awards and
settlements that we’ve seen with our claims. For every dollar of premium that
we were taking in in Texas, we were paying out $1.69 in claims. That’s
definitely one of the higher loss ratios that we’re seeing across the
country.”
Spiraling jury awards have greatly contributed to the current medical
liability litigation crisis. According to Jury Verdict Research, the national
median medical malpractice jury award (against physicians) has increased by
62 percent from 1994 to 2000. In 1994 the median jury award was $375,000 and
by 2000 the median jury award was $1 million. Similarly, the median
malpractice settlement increased by 42.6 % from 1994 to 1999, from $287,500
in 1994 to $592,074 in 1999.
Texas has fared as poorly as other states in the effects of the medical
malpractice litigation morass. The AMA “Medical News” in January, 2002
released an analysis of records from the insurance departments/commissions of
all 50 states and Washington, D.C., as well as an analysis of medical
liability carriers in all states. In 2002, the AMA News reported, physicians
in the eight states of Arkansas, Connecticut, Illinois, Nevada, North
Carolina, Ohio, Pennsylvania and Texas saw two or more liability insurers
raise premium rates by 30% or more. In 2001 Texas had 17 (regulated) medical
malpractice insurers licensed and selling malpractice insurance. In 2002,
only 4 regulated companies are selling malpractice insurance in Texas,
according to Ken McDaniel of the Texas Department of Insurance. A few
“unregulated companies” offer coverage, such as surplus and risk retention
groups and other self-insured organizations, which function only within
entities such as university medical schools.
The Texas Department of Insurance found that regulated medical malpractice
insurance companies in Texas lost a total of more than $229 million in 2000,
in addition to a loss of $103.5 million in 1999. In 1999, the Texas Medical
Association conducted a medical liability data study, which collected and
analyzed claims data from three of Texas’ largest medical malpractice
insurers. Texas Medical Liability Trust, Medical Protective Company and the
American Physicians Insurance Exchange, insuring an aggregate of more than
17,000 Texas physicians, provided data. For the three insurers, 82 percent of
claims were closed with no indemnity payment. Even though no indemnity
payment was made on these claims, the costs in legal fees (referred to as
“loss adjustment expenses”) was $71.6 million. Indemnity payments (payments
made on behalf of physicians to patients for personal injury, loss, or
damage) are not included in this figure. For TMLT in 2000, the average
indemnity per paid claim was $189,849—a 6% increase from 1999. The total indemnity
paid by TMLT, Medical Protective and API (in the aggregate) in 2000was $133.5
million.
Another TMA study was completed in 2001, which included data from 2000. That
study found that, for the three insurers noted above, 86 percent of
malpractice claims were closed with no indemnity payment. The 2000 legal fees
(loss adjustment expenses—exclusive of indemnity payments) for the three
insurers were $80.46 million. TMLT policyholders have paid an average loss
adjustment expense of $4,056 in 1999 and in 2000 have paid an average LAE of
$4,669. Texas insurance companies spend millions of dollars in defense and
legal fees to defend non-meritorious malpractice lawsuits (86 percent of
suits in 2000 were closed with no indemnity payment--- for all three studied insurance
carriers, and 89.8% of malpractice lawsuits defended by the Texas Medical
Liability Trust in 2001 were closed with no indemnity payment).
In 2000, a study by the Texas Medical Association found that one in every
four Texas physicians had a malpractice claim pending against him. In 2002,
more than half of all Texas physicians have one or more malpractice lawsuits
pending against them. In contrast, approximately 15% of Texas physicians had
one or more lawsuits pending against them in 1992. In selected areas of
Texas, the situation is even worse. Nueces County (Corpus Christi), has the
undesired distinction of having the highest percentage of complaints against
physicians in the state. In 2002, 63% of Nueces County physicians have
malpractice claims pending. Following close behind Nueces County in number of
legal complaints filed against physicians are Beaumont, Brazoria and the Rio
Grande Valley. These complaints (filed by patients with physicians’ insurers)
are frequently the precursor to lawsuits.
As claim frequency, legal expenses and claim payments increased in 2000, so
did premiums paid by physicians. In 1999, the average premium per
policyholder (all three companies) was $8,135. In 2000 the average premium
per policyholder was $9,850.
In Nueces County, the effects of the medical liability litigation crisis have
already become apparent. In 2001, there were three pediatric surgeons at
Driscoll Children’s Hospital in Corpus Christi. In 2002, there is only
one—the other two having been driven away by exorbitant medical liability
insurance premiums. Dr. Michael Burke, Chief of Surgery at Driscoll
Children’s Hospital and the only board-certified pediatric neurosurgeon south
of San Antonio, saw his medical liability insurance premium double from 2000
to 2001—up to $115,000 in 2001. Dr. Herman Keillor, an orthopedic surgeon
practicing for 29 years, currently in practice in Harlingen—had his medical
liability insurance premiums increase from $32,000 in 2000 to $58,000 in
2001. His insurance carrier will no longer provide a policy to him after his
current policy expires in the summer of 2002—despite being in good standing
with his insurer. In Nueces County, the Texas Medical Liability Trust has
seen litigation losses exceed premiums received in four of the past 5 years.
Where does the medical liability litigation dollar go? According to data from
Tillinghast, an actuarial accounting firm, the breakdown of each dollar
awarded by juries in medical malpractice cases is as follows:
24 cents for “actual damages”
22 cents for “pain and suffering” and other
non-economic damages
16 cents for the plaintiff attorneys
14 cents for defense costs
24 cents for administrative costs, including
court costs.
Thus only 46 cents of each dollar awarded by juries goes to patients as
compensation. Still another study (by the Health Care Liability Alliance)
found that only 43 cents of every dollar awarded by juries goes to patients
and 57 cents goes for “other costs”—primarily for “legal fees”.
The negative effects of the current Texas medical liability litigation crisis
are both numerous and ominous:
Physicians retire early or enter another line of work
Physicians move out of state
Physicians close their practices to new patients
Physicians cease performing some high-risk procedures (delivery of babies,
etc.)
Physicians stop accepting high-risk patients
Patients experience increase difficulty in gaining access to health care
Certain specialties stop taking call for local emergency departments
Applications to medical schools continue to decline—the “best and brightest”
are
no longer applying
The accessibility and quality of healthcare services inevitably declines
The next essay in this series will explore various state initiatives to
provide at least a partial remedy to the current plague of medical liability
litigation.
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For Whom the Bell Tolls II
“Send not to ask for whom the
bell tolls, it tolls for thee”
—John Donne
A series of Essays on the Texas Medical Liability Litigation Crisis
Robert W. Kottman, MD, FACEP
Vice-Chair, Socio-Economics and Legislative Committee
Bexar County Medical Society
Essay # 2 “Endeavor to Eschew Obfuscation”
(Old admonition which is seldom put into practice by plaintiff attorneys)
In last months essay (“Enemy at the Gates”) we reviewed the critical nature
and etiology of the current Texas medical liability litigation crisis.
According to Tillinghast, an actuarial accounting firm, in 1950 the tort
costs per US citizen were $12/year. By 2000, the average tort cost per US
citizen had skyrocketed to $636/year. In 1950, the American civil liability
system cost 0.6% of Gross Domestic Product, and by 1999, the American civil
liability system had ballooned to 2% of Gross Domestic Product ($161
billion). The national average jury award in medical malpractice cases
(physician + hospital) has risen from $1.95 million in 1993 to $3.49 million
in 1999.The national median jury award against physicians in medical
liability cases has risen from $375,000 in 1994 to $1 million in 2000, an
increase of 62%.
The Texas Department of Insurance found that regulated medical malpractice
insurance companies in Texas lost a total of $103.5 million in 1999 and more
than $229 million in 2000. St. Paul Insurance Company, the nation’s largest
medical malpractice insurance carrier, announced that it was withdrawing from
the medical malpractice insurance market in 2002, leaving over 40,000 US
physicians scrambling to find a new medical liability insurer. St. Paul
announced that, in Texas, it was paying out $1.69 in medical liability claims
for every $1 in premium that it was taking in, and St. Paul’s medical
liability division (nationwide) lost $940 million in 2001. In 2001, the TDI
studied year 2000 data from three of Texas’ largest medical malpractice
insurers (Texas Medical Liability Trust, Medical Protective, and American
Physicians Insurance Exchange) insuring more than 17,000 Texas physicians.
Even though 86% of medical malpractice lawsuits were closed with no indemnity
payment (no money paid on behalf of physicians --by the insurers-- to
plaintiffs), legal fees cost the three companies $80.46 million. This figure
does not include payments by the insurers to plaintiffs. Thus, these three
Texas medical liability insurers paid millions of dollars in defense and
legal fees to defend non-meritorious malpractice lawsuits (86% of claims
closed with no payment to the plaintiffs). The total number of regulated
medical malpractice insurance companies writing policies in Texas plummeted
from 17 in 2001 to 4 in 2002.
Physician medical malpractice insurance premiums have universally increased
from 2000 to 2001, with increases as high as 250-300% for some specialties in
some localities. Many physicians, despite having no lawsuits filed against
them, have lost medical malpractice insurance coverage and been unable to
obtain commercial insurance coverage. The number of Texas physicians insured
by the insurer of last resort, the Texas Joint Underwriting Association, has
increased from 137 in 2000 to 528 in April 2002.
The inescapable fact is that the main factor in the genesis of the current
Texas medical liability litigation crisis is the increasing frequency and
severity of medical malpractice complaints, claims and lawsuits. The Texas
plaintiff bar has a number of unique explanations for the enormous increases
in the costs of medical malpractice insurance (and the total unavailability
of insurance for some specialists in some areas of the state).
Unsurprisingly, none of their explanations blames litigation for the crisis.
What are the plaintiff attorneys’ various “propaganda lines” for explaining
the genesis of the medical liability crisis in our state? The following are
refrains which will be repeated endlessly (until the close of the next
session of the Texas legislature in 2003) by the apologists for the plaintiff
bar.
Alibi # 1 “Lawsuit abuse has nothing to do with the exorbitant increases in
medical liability insurance premiums. The culprit is ‘bad investments in the
stock market by the insurance companies.’”
Fact: Texas Insurance Commissioner Jose Montemayor said the stock market
losses were a “very tiny portion of the problem.” He told the Valley Morning
Star that stock market losses are responsible for 5 percent of the problem
and the remaining 95% are due to insurance company losses. Montemayor said
that the severe medical malpractice liability litigation crisis in the Rio
Grande Valley is due to the frequency of the losses as opposed to the
severity of the losses experienced in other portions of the state. He stated
that over the last 5 years, the Valley has experienced a 60% increase in
lawsuits filed each year. The experience of the Texas Medical Liability Trust
is typical. TMLT invests in bonds and fixed-income vehicles, as do many
physician-owned insurance companies. Less than 10% of TMLT’s investable
assets are in the stock market. TMLT has a not-for-profit status, and has
never had a substantial investable asset base on which to earn investment
income. Information about any liability carrier’s income, assets, surplus and
investments is available from the company’s annual report. Independent
insurance rating agencies and state departments of insurance can also provide
this data.
Alibi #2 The number of medical liability lawsuits has actually decreased,
rather than increased.
Fact: In their zeal to confuse Texans about the true cause of the medical
liability litigation crisis, plaintiff attorneys trumpeted an incomplete
annual survey by the Texas State Board of Medical Examiners that found the
number of claims filed in 2001 had decreased to 3,641 in 2001 compared to
4,845 in 2000. According to Don Patrick, MD, TSBME Executive Director, the
data in the TSBME survey is not reflective of reality. Dr. Patrick stated,
“The numbers that come from our agency are used only for our internal
purposes. Any number that comes from our agency that’s used to give any kind
of indication about how many cases there are in Texas, about any one thing,
or in any particular category—I can tell you they’re wrong. Because our
numbers come from the insurers, sometimes they send them, sometimes they
don’t. Like Medical Protective—they don’t send them if they’re claim letters.
Others do. We have no idea what the real numbers are, but the numbers that we
get and the cases that we get—we intend to do something with them.”
(Statement before the Texas House of Representatives Insurance Committee, May
6, 2002)
Alibi #3 The increase in medical malpractice lawsuits is the result of too
many “bad doctors” who commit grievous errors and injure patient. The recent
“Institute of Medicine” report proves this assertion.
Fact: The “Institute of Medicine” (1999) report alleged that medical errors
and accidents in hospitals caused between 44,000 and 98,000 deaths per year.
Several subsequent studies have found that the IOM report is seriously flawed
and the figures for hospitalized patient deaths is “probably an
overestimation”.(Hayward, R.A., Hofer, T.P., “Estimating Hospital Deaths due
to Medical Errors”, Journal of the American Medical Association, 2002;286.4)
Also (Brennan, T.A., “The IOM report on medical errors—could it do more
harm?”, The New England Journal of Medicine, 2000; 342:15) Yet the flawed
figures in the IOM report are regularly spewed out by plaintiff attorneys to
illustrate the need for malpractice litigation. What the plaintiff attorneys
never mention, however, is that there has never been any study ever published
anywhere that proves that increased numbers of lawsuits lead to increased
patient safety and decreased medical errors. Further, the IOM report itself
stipulates that measures should be taken to make health care providers more
forthcoming in discussing errors so that others may learn from them. According
to the IOM report, “The focus must shift away from blaming individuals for
past errors to a focus on preventing future errors by designing safety into
the system...when an error occurs, blaming an individual does little to make
the system safer and prevent someone else from committing the same error.”
Alibi #4 Lawsuits are valuable and necessary to improve the quality of health
care and reduce medical errors.
Fact: Lawsuits do NOT create a safer health care environment. If seriously
concerned about patient safety, the first step should be reform of the
current medical liability system. According to the American Association of
Health Plans, "The current malpractice system is now considered to be
the single most important barrier to improving the safety of the health care
system.” Lawsuits, rather than creating a safer health care environment, only
complicate efforts to prevent medical errors by imposing silence and
secrecy—breeding fear and insecurity. Fear of litigation stifles attempts to
discuss medical errors—and thus prevent similar errors in the future. Fear of
litigation has also contributed to lack of access to needed specialty
coverage in San Antonio Emergency Departments. Downtown Santa Rosa, Downtown
Baptist and Southwest General Hospitals currently have no on-site
neurosurgical coverage for their Emergency Departments. On July 1, 2002,
University Hospital’s neurosurgical coverage for the Emergency Dept. dropped
to only 15 days per month—meaning that University Hospital’s ED changes from
a Level I trauma center to a Level III trauma category on those days of each
month when no neurosurgery coverage is available. This development is due to
the fact that University Hospital has only two neurosurgeons on staff. At the
three hospitals mentioned previously, there are neurosurgeons on staff, but
they have declined to provide ED coverage—at least in part due to the
increased risk of medical liability lawsuits by ED patients they “inherit” by
virtue of taking call for the ED. The cost of medical malpractice insurance
premiums tends to increase as the amount of Emergency Department “call” taken
increases. Additionally, the proportion of uncompensated patients in the ED
is significantly higher than in the population at large. Thus the “advantage”
of ED call is higher medical liability insurance premiums, increased risk of
medical liability lawsuits, loss of “personal and family time” and increased
likelihood that any care provided will be uncompensated. It is irrational—as
the plaintiff attorneys assert—to believe that higher malpractice premiums
(in the absence of medical liability reforms) improve the quality of medical
care and increase patient safety. How does the patient who presents to any of
the three hospitals previously mentioned (or University Hospital on days when
there is no ED neurosurgery coverage) with subdural or epidural hematoma,
subarachnoid hemorrhage, intra-cerebral hemorrhage, spinal cord injury, or
cauda equina syndrome benefit from increased patient safety and improved
“quality of care” due to the increasing number of medical liability lawsuits
currently inundating our courts? In fact, the effect of medical liability
lawsuits has never been shown to have any effect whatever on “quality of care
or patient safety”—but lawsuits definitely degrade patient access to
appropriate specialty care and increase the danger to patients by mandating
the inevitable delay in definitive care which results from having to transfer
patients to other hospitals which have appropriate specialists on “ED Call”.
Alibi #5 Medical liability reform will only serve to allow physicians to
avoid responsibility for their mistakes and will decrease the quality of
healthcare in our nation.
Fact: Researchers at the Stanford University Graduate School of Business
found that medical liability reform lowered health care costs with no
significant impact on health outcomes—in states that have limited
non-economic and punitive damage awards. (Kessler, D., McClellan, M., “Do
Doctors Practice Defensive Medicine?”—a National Bureau of Economic Research
Working Paper, #W5466, February, 1996. Published: Kuroda, T., ed. “Towards a
More Effective Monetary Policy”, MacMillan: 1997). Does any sane person
actually believe that true medical negligence will be less likely to result
in medical malpractice lawsuits? The focus of medical liability reform has
been to decrease the extraordinary volume of non-meritorious (frivolous)
lawsuits which currently compose approximately 85% of all malpractice
complaints and claims. Such medical liability reform will not inhibit the
filing of lawsuits for true negligence.
The next essay in this series illuminates the “Indiana Plan” of medical
liability litigation reform—which has been in effect in Indiana since 1975.
This plan has produced markedly decreased insurance premiums, increased
patient access to care, and had no deleterious effects on patient safety or
quality of care—if anything, quality of care has improved since the enactment
of the “Indiana Plan” in the Hoosier state.
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For Whom The Bell Tolls III
“Send not to ask for whom the bell
tolls, it tolls for thee”
—John Donne
By Robert W. Kottman, MD, FACEP
Vice-Chair, Socio-Economics and Legislative Committee
Bexar County Medical Society
Essay # 3 “Hooray for Hoosiers”
In the first two essays of this series, we examined the scope of the current
medical liability litigation crisis and the current disinformation campaign
being waged by the plaintiff bar in attempts to mislead the public regarding
the critical need for medical liability litigation reform. Today we examine
one of the most successful models for restoring fairness to the medical
liability litigation process—the “Indiana Plan”.
In 1975, the State of Indiana enacted medical liability reform under the
leadership of Governor Otis Bowen, a Family Physician who had served many
years in the Indiana Legislature as Speaker of the House of Representatives.
The “Indiana Plan” has withstood numerous court challenges by the plaintiff
bar, has greatly reduced the number of medical liability trials, has resulted
in the vast majority of medical liability claims being either settled or
“dropped” following a review of each medical liability claim by a three
member Medical Review Panel, and has significantly increased the availability
of and reduced the cost of medical liability insurance.
Indiana physicians must obtain medical liability insurance in the minimum
amounts of $250 k/$750 k. Hospitals of less than 100 beds must obtain
liability coverage of at least $5 million. Larger hospitals must have
coverage of at least $7.5 million.
The Statute of Limitations on malpractice suits is two years after the date
of the alleged malpractice, except for children under age 6. For these
children, a claim may be filed up to the date of the child’s 8th birthday.
There is a cap on the total amount of any malpractice award. From 1975 until
1990, the cap was $500 k. From 1990 until July 1, 1999 the cap was $750 k.
After July 1, 1999 the cap is now $1.25 million. The maximum financial
liability for any physician or hospital for any one case is $250 k. Any
amounts in excess of $250 k may (or may not) be paid from the state
“Patients’ Compensation Fund”. The Patients Compensation Fund is funded by an
annual surcharge on “all healthcare providers”. The minimum contribution to
the fund is $100. From July 1, 1999 until July 1, 2001, the surcharge was
100% of the cost to each provider to maintain financial responsibility. Since
July 1, 2001, the annual surcharge is determined by a rule adopted by the
state insurance commissioner. The amount of the annual surcharge is
determined by actuarial studies and “must be adequate for the payment of
claims and expenses from the Patients Compensation Fund.” The actuaries
determine the “median” of premiums paid for liability policies to the three
largest insurers for each specialty in the past year. The surcharge is a
percentage of the “median premium” for all physicians in the same specialty.
It must be sufficient to cover, but may not exceed, the actuarial risk to the
Fund by physicians of each specialty. The annual “provider surcharge” is due
and payable within 30 days after the premium for malpractice liability
insurance has been received by the insurer. There is a penalty of 10% of the
surcharge if the insurer responsible for payment is late in payment to the
Fund.
Payments are made from the PCF only after there is agreement by the provider
or insurer to settle liability by payment of its maximal $250 k policy limit.
Additionally, the plaintiff must file a petition in court for: (a) approval
of an agreed settlement (b) a demand for payment from the Fund. Copies of the
court petition are served on the (a) State Insurance Commissioner (b) the
healthcare provider (c) the medical liability insurer. The State Insurance
Commissioner, plus the provider and/or insurer may agree to a settlement from
the “Fund” or may file written objections to payment of the amount demanded.
Agreement to (or objections to) payment from the Fund must be filed with the
applicable court within 20 days of the receipt of the plaintiff demand. The
court judge shall either approve settlement or set a hearing on objections to
payment from the Fund-—his is to be done “as soon as practicable”. The judge
of the applicable court hears all evidence from all parties in a contested
payment situation. If there is no agreement on the amount (if any) to be paid
from the Patients Compensation Fund, then the judge determines the amount (if
any) to be paid from the Fund (in excess of the $250 k already paid to the
plaintiff by the provider or his insurer. If a settlement from the Fund is
agreed upon by all parties and is approved by the judge, there is no appeal
possible. A judgment of the court fixing damages in a contested proceeding is
appealable, as in any other civil case.
The “Indiana Plan” created “Medical review Panels” to review proposed
malpractice complaints against healthcare providers. At least 20 days after
filing a complaint, either party may request the formation of a medical
review panel by sending a request to all parties and the state insurance
commissioner. A claim may not be brought before a court until it has been
reviewed by the medical review panel, unless the claim is for an amount of
less than $15,000 or unless all parties agree. Each panel consists of one
attorney (non-voting member) and three healthcare providers, two of whom must
practice in the same specialty as the provider who is accused of malpractice.
The attorney acts as chairman and in an advisory capacity (non-voting). The
chairman expedites panel selection, convenes the panel and expedites the
panel’s review of the complaint.
Within 15 days of a request to form a Panel, the parties select a chairman by
agreement. If no agreement on a chairman is reached, either party may request
the clerk of the state Supreme Court to draw at random a list of 5 names of
attorneys who: are qualified to practice; are on the rolls of the state
Supreme court; maintain offices in the county of venue or in contiguous
counties. A $25 fee is collected from the party making the request for
formation of a random list. The clerk of the Supreme Court notifies the
parties, and parties then strike names alternately (with the plaintiff
striking first) until one name remains—he or she will be chair of the Medical
Review Panel. Within 15 days of notification of selection as chairman, the
chairman either sends a written acknowledgement of appointment to the clerk
or shows good cause for relief from serving.
Except for health care facility administrators, all healthcare providers in
the state, whether in the teaching profession or otherwise, who hold a state
license to practice, shall be available for selection as a member of the
panel. Healthcare facility administrators are prohibited from serving as
members of the panel.
Each party to the complaint selects one panel member. The two panel members
then select the third member by agreement. If the defendant is a physician,
two of the panel members must be from the same specialty as the defendant,
the third member must simply be a “health care provider” (Dentist, RN, LVN,
PA, ARNP, midwife, chiropractor, optometrist, EMT, psychologist, podiatrist,
physical therapist, etc.). If there is no agreement on the third member of
the panel, the chairman makes the selection and notifies all parties. Also,
if the two members of the panel fail to select the third member within 15
days of their own selection, then the Chairman selects the third member of
the panel. Within 10 days after selection of a panel member, written
challenge without cause may be made to the panel member. If challenged, the
party suffering the challenged appointee shall select another panelist. If
the challenged appointee was selected by the two panel members, they shall
make a new selection. If two challenges are made, the chairman (within 10
days) will appoint a 3 member panel. Each side then has 10 days to
mandatorily strike one panelist. The party who appointment was challenged
shall strike last, and the remaining panelist shall serve. When the panel is
formed, the chairman will notify (within 5 days) the insurance commissioner
and the parties by registered or certified mail of: (a) the names and
addresses of the panel members (b) the date on which the last panel member
was selected. The panel members selected shall serve unless: (a) the parties
agree to excuse the panelist (b) the panelist is excused for “good cause” (c)
to show “good cause” the health care provider must serve an affidavit on the
panel chairman, setting out the facts showing that service on the panel would
be an unreasonable burden or hardship (d) the chairman may then excuse the
panelist.
The Medical review Panel must provide its expert opinion within 180 days
after the selection of the last member of the initial panel. The evidence in
written form to be considered by the panel shall be promptly submitted by the
parties, and may be: (a) medical records, (b) X-rays, (c) Laboratory tests,
(d) excerpts of treatises, (e) depositions of witnesses—including the
parties, (f) other evidence allowed by the panel. Depositions may be taken
before the convening of the panel. Chair of the panel must ensure that each
panel member has opportunity to review every item of evidence submitted. A
written oath must be taken by the panel members before consideration of any
evidence—“I swear (affirm) under penalties of perjury that I will well and
truly consider the evidence submitted by the parties; that I will render my
opinion without bias, and that I have not and will not communicate with any
party or representative of a party before rendering my opinion.” Neither
party (or their agents, attorneys or insurance carriers) may communicate with
any member of the panel, except as authorized by law, before the giving of
the panel’s expert opinion. The panel chairman advises the panel relative to
any legal question involved in the review proceeding, and prepares the
panel’s opinion. Either party, after submission of the evidence and upon 10
days notice to the other party, has the right to convene the panel at a time
and place agreeable to panel members. Either party may question the panel
concerning any matters relevant to issues to be decided by the panel—before
the panel’s report is issued. The chairman presides at all meetings, and the
meetings are informal. Panel must request all necessary information and may
consult with “medical authorities”. The panel may examine reports of other
health care providers. There is full access by both parties to any materials
submitted to the panel. After review of all the evidence and after any
examination of the panel by counsel representing either party, the panel
shall, within 30 days, give one or more of the following expert opinions, in
writing and signed by the panelists:
(a) The evidence supports the conclusion that the defendant failed to comply
with the appropriate standard of care as charged in the complaint
(b) The evidence does not support the conclusion that the defendant failed to
comply with the standard of care as charged in the complaint
(c) There is a material issue of fact, not requiring expert opinion, bearing
on liability for consideration by the court or jury
(d) The conduct complained of was or was not a factor in the resultant
damages. If so, whether the plaintiff suffered: (a) any disability, its
extent and duration, (b) any permanent impairment and the percentage of
impairment
The expert opinion of the panel is admissible as evidence in a court of law.
Either party, at their cost, has the right to call any member of the medical
review panel as a witness. If called, the panel member must appear and
testify in court.
Panelists have absolute immunity from civil liability for all communications,
findings, opinions and conclusions made in the course and scope of their
duties.
Each healthcare provider on the panel is entitled to be paid up to $350 for
all work performed as a panel member, exclusive of time involved if called as
a witness to testify in court; plus “reasonable travel expenses”. The panel
chairman is reimbursed $200 per diem, not to exceed $2,000, plus “reasonable
travel expenses”. The panel chairman keeps records of time and expenses of
all panel members and submits these records to the parties for payment with
the panel’s report.
All panel fees shall be paid by the side in whose favor the majority opinion
is written. If there is no majority opinion, each side shall pay 50% of the
costs. The Chairman submits a copy of the panel’s report to the state
insurance commissioner and to all parties and attorneys—certified or
registered mail within 5 days after the panel’s opinion is given. The one
exception to the Medical review Panel is if a plaintiff seeks less than
$15,000. Then he may commence an action against a health care provider
without submitting a proposed complaint to a Medical Review Panel. Under this
exception, the plaintiff is barred from recovery of any amount greater than
$15,000.
What has been the impact of the “Indiana Plan”?
(a) Most claims are settled or dropped after the expert opinion of the
Medical Review Panel is given
(b) The has been a dramatic decrease in the filing of “frivolous claims”
(c) Juries hear the expert opinion of the Panel, and nearly always concur
with the Panel opinion
(d) There has been a significant decrease in medical liability lawsuits
(e) There is a limitation of $250,000 liability for any provider or his/her
insurer
(f) The Commissioner of Insurance may or may not contest payment from the
Patient Compensation Fund
(g) If payment is contested, a judge determines liability (if any) of the
Fund.
(h) Medical liability insurance premiums for Indiana healthcare providers
have decreased significantly
(i) There is a healthy malpractice climate in Indiana which promotes provider
recruitment and retention
(j) Healthcare access is not impeded by unhealthy malpractice
claims/insurance experience.
(k) The medical review panel will make a separate determination, at the time
that it renders its opinion, as to whether the name of the defendant health
care provider should be forwarded to the appropriate board of professional’s
registration for review of the health care provider’s fitness to practice the
health care provider’s profession. The commissioner of insurance shall
forward the name of the defendant health care provider if the medical review
panel unanimously determines that it should be forwarded. The medical review
panel determination concerning the forwarding of the name of the defendant
health care provider is not admissible as evidence in a civil action. In each
case involving review of a health care provider’s fitness to practice
forwarded under this section, the board has the power to take the following
disciplinary action:
(a) Censure
(b) Imposition of probation for a determinate period
(c) Suspension of the health care provider’s license for a determinate period
(d) Revocation of the provider’s license
Specifics of the amounts of annual surcharges for the Patients Compensation
Fund are given in the accompanying table. A comparison of the Indiana Patient
Compensation Fund Surcharge PLUS the insurance premium to surrounding states’
physician liability insurance premiums for the year 2001 are given in the
second table.
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For Whom The Bell Tolls IV
California Dreamin’
By Robert W. Kottman, M.D.
One of the most effective medical liability litigation reforms in the U.S.
was the 1975 passage by the California Legislature of the “Medical Injury
Compensation Reform Act”, known also as MICRA. Texas physicians and other
healthcare providers are strongly advocating that this California law—which
has withstood numerous challenges by the plaintiff bar—be the foundation upon
which Texas may achieve meaningful (and constitutional) medical tort reforms.
It is useful to examine a brief history of the California medical liability
litigation crisis and the evolution of the remedy known as MICRA.
In the early 1970s, California was the leading “problem area” on the West
coast in regard to medical liability litigation, premium increases by
insurers, and increasing of medical liability insurance at any cost. With Los
Angeles County serving as the leading “hotbed” of this litigation, jury
awards skyrocketing, and healthcare liability insurers leaving the state akin
to a swarm of lemmings, California physicians faced a crisis which
increasingly and adversely affected patient access to care –as physicians
left the state for areas with a less litigious and more just medico-legal
climate. Between 1965 and 1971, medical liability insurance premiums as a
whole increased between 400-600%; the increase for surgery was 950% between
1966 and 1970. Further increases in the early 1970s exacerbated the crisis.
The cumulative effect of these increases was a massive withdrawal of medical
services throughout California which the media called a “doctors’ malpractice
strike”. On May 1, 1975, anesthesiologists in northern California announced
their withdrawal from service in protest over the lack of medical malpractice
insurance. All elective surgeries were cancelled and only emergency surgery
was performed. This was followed by similar strike actions throughout the
state by surgeons and some other specialties. Hospitals were concerned about
their ability to keep their emergency departments open. Neurosurgeons and
orthopedic surgeons announced their intention to follow the lead of the
anesthesiologists—raising concerns that patients would die or suffer serious
adverse effects from the inability to obtain appropriate medical care.
Governor Jerry Brown called meetings with the California Hospital Association
and California Medical Association in an attempt to find a solution to the
crisis. Discussions with the Governor centered on a package of medical tort
reforms designed to relieve pressure on malpractice insurance premiums and
bring litigation costs back in line with the average annual increase for
medical care and wages. Stakeholders were concerned that the proposed
legislation have a clear public benefit. When the medical tort reform
legislation was tested in both the California and US Supreme Courts, the
existence of a quid pro quo by hospital and physicians who benefited from the
tort reforms could be critical to achievement of a favorable Supreme Court
ruling. One aspect of such a quid pro quo was proposed to be a provision that
the tort reform package benefits would only accrue to physicians, hospitals
and other healthcare providers if they purchased and maintained a certain
minimal level of medical liability insurance—thus assuring patients who
sustained legitimate injuries as a result of medical misadventure would have
the ability to collect financial damages, rather than have those providers
eliminate medical liability insurance and “go bare”. The California Medical
Association also proposed that the Medical Malpractice Act be completely
revised to create a more effective disciplinary body (California State Board
of Medical Examiners) with additional powers to monitor and sanction deviant
practitioners. The State Medical Board would also be re-structured to include
a majority of lay members to assure public accountability. Medical liability
insurers’ premium rate increases would be controlled by the state Insurance
Commissioner to deal with the issues of draconian premium increases and lack
of availability of insurance coverage.
After reviewing all parties’ issues in the debate, Governor Brown called a
special session of the Legislature on May 6, 1975, with the sole objective of
enactment of meaningful medical liability tort reforms. During the debate in
the special session, the California Assembly Select Committee on Medical
Malpractice issued its report on the medical liability litigation crisis.
It’s findings included the following:
Medical liability insurance claims have risen dramatically due to:
Changing physician-patient relationships
Media impact on claims
Changing legal doctrines
Increasing sophistication of trial lawyers
An explosion of the concepts and publicity surrounding “legal rights”
Medical liability claims have had a severe and dramatic effect on healthcare
providers and patients—with an untoward effect on the physician-patient
relationship, particularly the fact that the increased cost of medical
liability lawsuits is a least partially passed on to patients in the way of
higher physician fees. In a great number of cases, however, physician fees
are fixed by third party payers (Medicare, Medicaid, HMOs, PPOs, etc.) with
the result that most of the cost of higher medical liability insurance
premiums must be absorbed by the physician.
Lawsuit abuse is increasing the practice of “defensive medicine”, in which
physicians order increasing numbers of laboratory tests, consultations and
biopsies which would not be ordered if physicians were not attempting to
shield themselves from lawsuits for such common allegations as “failure to
diagnose” and “failure to refer”. “Defensive medicine” costs billions of
dollars which could be better spent on increasing access to care and
assisting the uninsured to purchase health insurance.
Frivolous lawsuits are brought in an effort by plaintiffs and their attorneys
to win the “litigation lottery”.
Efforts should be undertaken to increase the power and effectiveness of the
California state Board of Medical examiners.
Patients are paying much of the cost of lawsuit abuse and will be the
ultimate “losers” when physicians decrease availability and hence access to
care.
The MICRA law was finally passed and signed into law by the Governor in
September, 1975, following a tempestuous and bitter legislative battle waged
by its opponents—chiefly the trial lawyers and their allies. Provisions of
MICRA are as follows:
“Non-economic damage awards shall not exceed $250,000.”
The use of a cap on non-economic damages was justified to the public, the
legislature and the courts because of the dramatic increase in multi-million
dollar verdicts—with the majority of the awards attributable to such
non-economic damages as “pain and suffering”, “emotional trauma”, “loss of
consortium,”, etc. The irrational pattern of judgments for non-economic
losses arose from the fact that there is no real standard to judge the
fairness if non-economic damage awards—which in highly emotional cases could
be astronomical. Further, trial court judges as well as the appellate courts
were reluctant to exercise any realistic control over jury awards. The result
was a wide range of awards often dependent on the “whims” of the individual
jury. The cap on non-economic damages, regardless of the number of claimants
or the number of defendants, proved to be the most effective part of MICRA.
“The claimants’ economic and non-economic damage awards shall be paid
periodically rather than in a lump sum, in the form of an annuity.”
Annuities produce a more constructive result for successful plaintiffs and
their families by assuring them an annual income for the life of the
plaintiff along with benefits for any loss of income—which continued for the
use of the dependent spouse and children. There are substantial tax benefits
to an annuity. Income from investments of “lump sum” settlements and damage
awards is subject to income tax, but the payments under an annuity agreement
are not. Annuity plans can be adapted to the needs of the family, providing
for special medical care, funds for college education, etc. that the average
plaintiff could not design or provide for alone. From the viewpoint of the
defendant the deferral of payments under this type of program can be provided
at a lower cost than can a lump sum payment. Annuities with annual payments
protect families from the potential waste of a large lump sum settlement or
award (lottery winner syndrome) through improvidence, and assure that there
is care for the life of the injured party and support for dependents. Today
eleven states have mandatory periodic payment laws and 16 have rules that
permit periodic payments with consent of the plaintiff.
“Juries are permitted to hear evidence of collateral sources of compensation
to claimants and providers of collateral sources are prohibited from
subrogating against the claimant.”
This reform allows the introduction of evidence by the defense of collateral
sources of recovery that reimburse the plaintiff for financial losses or
damages. For example, if a claimant’s health insurance pays some or all of
the medical bills resulting from the medical injury, the health insurer
cannot claim a part of any subsequent medical liability award. The California
collateral source reform is called the “evidentiary rule” because the defense
can introduce evidence of collateral sources of reimbursement to injured
plaintiffs. The “evidentiary rule” allows juries to know of any and all
sources of compensation available to plaintiffs through other mechanisms than
by jury awards. The knowledge that plaintiffs may have all or part of their
healthcare bills covered by health insurance or government programs often has
major impact on jury awards and may serve to offset the emotional sympathy
factor generated by the plaintiff’s injuries. Concealment from the jury of “collateral
sources” of compensation often misleads juries into the erroneous belief that
the only source of financial compensation for injured parties is the jury’s
award of damages. This may lead to wrongly inflated awards and exacerbation
of the medical liability litigation crisis.
“Claims must be filed within one year after discovery of the injury, but no
later than three years after the injury occurred, except for instances
involving foreign objects in the body which have no therapeutic or diagnostic
purpose or effect—in which case they may be brought at any time within one
year of discovery; and claims involving injury to a minor under six can be
brought within three years or before the child’s eighth birthday whichever
provides a longer period.”
In the 1970s the frequency and severity of infant brain damage lawsuits was
the fastest growing major loss area for both hospitals and physicians. The
financial capability of the liability insurance carrier to estimate its
potential liability for such cases, both known and unknown, was an
impossibility under existing law. Liability exposure could run until at least
a year after the individual became “of age”—18 years at present. There was
the potential problem that a jury reviewing the matter more than 18 years after
the occurrence could assess damages based on current standards of care,
rather than the standards in place when the event occurred ( and the
standards in place at the time the insurer was collecting premiums).
Additionally, lawsuits brought more than a decade after the alleged
malpractice increased the difficulty of a fair defense, with records missing
or converted to storage formats which were subject to deterioration,
misplacement and loss. Additionally, defendant’s memories of extremely remote
events were often compromised.
Limitation of plaintiff attorneys’ “contingency fees” was also a major
element of MICRA.
“Plaintiff attorney fees shall not exceed: 40% of the first $50,000 of any
award; 33.33% of the next $50,000; 25% of the next $500,000; and 15% of any
amount over $600,000.”
Prior to the enactment of MICRA, blockbuster judgments or settlements
provided a windfall to the attorney at the expense of the injured plaintiff,
who was the one who suffered the injury. By reducing the plaintiff attorney’s
fee, the share going to the injured party is greater and replaces some of the
impact on the plaintiff’s recovery created by the $250,000 limit on
non-economic damages and the elimination of the prohibition against jury
knowledge of collateral sources of patient compensation. California’s current
fee schedule allows the plaintiff attorney to collect almost $225,000 on a $1
million judgment. Today, 14 states have plaintiff attorney fee caps and 8
states give trial judges the authority to limit contingency fees.
MICRA became effective December 17, 1975. One of the beneficial results of
MICRA was the complete reorganization of the California Board of Medical
Examiners and the Medical Practice Act under which physicians are licensed
and disciplined. Before MICRA, the Medical Board had been subject to
criticism both within and without the medical community for its perceived
failures to protect the public from incompetent or fraudulent physicians.
Further, there was great concern within organized medicine about expanding
bureaucratic control over the practice of medicine with no effective
improvement in the quality of practice. The thrust of MICRA’s efforts to
strengthen the licensure board’s authority was to provide the board with
additional power to develop solutions to enforce remedies against individual
physicians. Public accountability was sought by adding seven public
non-physician members to an expanded board of 19 members—with 17 members
appointed by the governor, one public member appointed by the Senate Rules
Committee, and another public member by the Speaker of the California
Assembly.
Shortly after enactment of MICRA, the trial lawyers filed legal challenges to
its constitutionality. In 1980 a district appeals court in San Francisco
finally ruled on the periodic payment section of MICRA and by unanimous
decision, held that this section was unconstitutional on grounds that it
violated Articles 5 and 14 of the US Constitution—relating to equal
protection and due process. This decision was appealed to the California
Supreme Court in May, 1980. Chief Justice Rose Bird was strongly opposed to
tort reform, as was Justice Stanley Mosk, a liberal jurist. Two other members
of the state Supreme Court recused themselves due to previous rulings they
had made in regard to other sections of MICRA and due to family members’
legal work on behalf of liability insurance companies. On March 31, 1983, the
California Supreme Court struck down MICRA by a vote of four to three, with
the majority opinion written by Justice Mosk. Eventually there was a
re-hearing of the constitutionality of MICRA by a Supreme Court whose
composition had changed. Governor Brown had replaced Justice Racanelli (one
of the majority that struck down MICRA) with Joseph R. Grodin. On July 9,
1984, the court handed down a 28 page opinion in “American Bank and Trust
Company vs. Community Hospital which was written by Justice Otto Kaus. This
opinion upheld (by a four to three vote) the constitutionality of MICRA and
the section on periodic payments in particular. Justice Kaus’ opinion
provided the basis for subsequent decisions on various provisions of MICRA,
all of which were eventually sustained.
After Justice Kaus’ historic opinion, the medical liability insurance market
in California stabilized. Prior to the adoption of MICRA, California was
always listed as one of the highest premium states—along with New York and
Michigan. In a 1995 study of physician premiums published by the Physician
Insurers Association of America, only 16 states had lower insurance premiums
for internists, 17 states for general surgeons, and 20 for OB-GYNs. During
the 14 year period following the Kaus decision, California medical liability
insurance premium rates remained flat. After taking into consideration for
payment of dividends to policyholders, premium rates in California actually
dropped below mid-1980s levels.
The beneficial results of the California MICRA law are certain to provide
stimulus for medical liability tort reform in Texas, based on the Herculean
efforts of California physicians and hospitals in overcoming the enormous
power of the trial lawyers to achieve a restoration of fairness, balance and
sanity to a previously chaotic, unpredictable and inherently unjust tort
system.
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