Medical Malpractice and Basic Insurance

Transcription

1 Oklahoma Association of Nurse Anesthetists Fall Meeting River Spirit Casino and Resort September 29-30, 2018 Medical Malpractice and Basic Insurance Mark J. Silberman, J.D. Partner Benesch, Friedlander, Coplan & Aronoff LLP

2 Let s Talk Medical Malpractice

3 What Are The BIGGEST Challenges That Accompany A Medical Malpractice Claim? Dealing with Lawyers. Dealing with Insurance Companies. Obviously, only the bad & greedy ones!

4 What Can A CRNA Be Most Grateful For If Ever Sued For Medical Malpractice? A Good Insurance Company. A Good Lawyer. Obviously, only the honest & good ones!

5 What is Medical Malpractice? When a health care provider provides substandard care to a patient that causes injury to the patient.

6 It is important to remember A "bad" outcome legal liability.

7 But it is also important to remember Defending a baseless claim costs the same (sometimes more) than defending a legitimate claim.

8 The Breakdown of Liability Duty (Did the appropriate relationship exist?) Breach of Duty (Was the standard of care met?) Causation (Did the breach cause the injury?) Damage (What are the results of the injury?)

9 Duty Was there a legal obligation to provide care to this individual (e.g., did a provider-patient relationship exist)?

10 BREACH OF DUTY Did the care provided meet the appropriate standards? WHAT IS THE APPROPRIATE STANDARD? Home/Local Community? National Standard? Specialist or Expert?

11 CAUSATION Did the substandard care CAUSE the injury? Just because the care was substandard does not mean it caused the injury being complained of.

12 DAMAGES Duty + Breach + Causation = Liability Liability Yields Damages The remaining question is: $$ or $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$

13 Before We Begin, Let's Discuss THE RELATIONSHIP WITH THE PATIENT

14 What Can I Do To Minimize My Risk? Provide quality care. Work with quality people. Perform routine evaluations of your process. (Don't wait for an incident to assess yourself). DO NOT SWEEP THINGS UNDER THE RUG! Listen to your staff, colleagues, and patients. Trust your lawyer.

15 Insurance Options Claims Made Versus Occurrence

16 Back in the day: What It Used To Be All medical malpractice insurance policies were "occurrence" policies. Policies were written for a one-year term and covered any claims that arose from treatment during that one-year term. This was true even if, at the time the claim was made, the insured was no longer with that company.

17 Occurrence An occurrence policy provides coverage for alleged incidents or injuries that occurred during the policy year regardless of when the claim is reported to the carrier. Provides a separate coverage limit for each year the policy is in force. It does not matter if the policy is active when the claim is reported - only that the policy was active when the alleged incident occurred.

18 Why Did This Change? Insurance companies were not making enough money (That s only kind of true). Damages awards began to increase and the premiums insurance companies had charged when the policies were issued did not cover the damages being awarded years later when the claims were being resolved.

19 What was the Result "Claims-made" policies were born. They allowed insurance companies additional opportunities to hedge their bets by adjusting their pricing later by having a "last shot" at more insurance premiums. (TAIL INSURANCE)

20 Claims-Made Offers coverage from a start date (often called a "retroactive date"). Coverage continues so long as the insured keeps paying premiums and continues to renew the policy. If you switch insurance companies, you need the new company to pick up the original retroactive date (and keep paying premiums).

21 Coverage You will be covered for incidents arising on or after the policy retroactive date and which are reported during the term of the policy. If you stop paying premiums or your new company will not pick up the previous retroactive date, your coverage for previous acts ("prior act coverage") ceases.

22 Unless... Your coverage is completed by acquiring a "tail. What Is A Tail? A tail is extra insurance (at an extra cost) that permits you to report claims for incidences that occurred during the time the policy was active (from the retroactive date to the policy expiration date).

23 Remember... The cost of the tail is a one-time fee. Without a tail, any incident that occurred when the policy was active, but was reported after the policy was terminated, will not be covered. Also, a tail will not cover incidents that occur after the policy is terminated.

24 Tails For The Individual With most policies, a free tail is available for death or disability without any waiting period; for retirement, usually after a waiting period of one to five years and sometimes after reaching a minimum retirement age. This is an important question to ask about your policies.

25 Tails For Facilities Free tails are usually not available to facilities. The tails that are available are usually offered at a steep premium and extend the time for filing claims for a limited period (usually 1 to 5 years).

26 Cost of Policies Generally, "occurrence" policies cost more than "claims-made" policies: Occurrence policies are priced at a level premium year to year. Claims-made policies start off at a low first-year premium and increase each year (usually for 5 to 7 years) until they reach their "mature" level premium.

27 Interesting... If you have a claims-made policy for several years and then buy the tail when the policy is terminated, the total cost can be similar to the rate of a comparable occurrence policy. (We differ on what we find interesting.)

28 Why? The reason occurrence coverage tends to be more expensive is because what you are basically doing is pre-paying for tail costs whether the tail gets used or not.

29 Claims-Made Policies

30 Costs

31 Which Should I Buy? It would seem almost intuitive that the occurrence policy is preferable if you don't consider the immediate price. At the end of the day: Purchasing insurance is a business decision and it is important to explore and understand what type of policy best fits your business needs.

32 Benefits To Consider One benefit of a claims-made policy is that changes to your current coverage or changes to the policy limits apply to past years as well. With a claims-made policy, you can increase your policy limits or add coverage as the need arises or as new coverage becomes available. It is more flexible and provides considerable cost savings during the early years which could be important when starting a practice.

33 Benefits To Consider (Cont'd.) The occurrence policy has the advantage of permanency. You do not have to renew the policy to maintain coverage for a year you were insured. You have separate limits each year you were insured so past claims will not erode the limits of future years of coverage.

34 Admitted v. Non-Admitted Companies Admitted: Regulatory Oversight State Guarantee Fund Coverage Broadest Policy Coverage Forms Unlimited Tail Coverage Available Non-Admitted Accepts non-standard applicants / more flexible underwriting Higher Premiums / Reduced Coverage

35 Concern re: Non-Admitted No state guarantee fund coverage No regulatory oversight Coverage limitations and restrictions

36 Consent to Settle The Insurance Company will not settle any claim without your consent. v. Insurer shall not settle any claim without the consent of the insured. If, however, the insured refuses to consent to a settlement recommended by insurer and elects to contest the claim or continue legal proceedings, insurer s liability for the claim shall not exceed the amount for which the claim could have been settled, including claim expenses.

37 Apology Laws State apology laws designed to balance the disconnect created between lawyers/ healthcare professionals and the rest of the world. Why was this necessary? "Whatever you do don't apologize it will look like you did something wrong!?!"

38 Apology Laws (Cont'd.) The concept is that an apology for what has happened will not be admissible in court as an admission of guilt. Why? Most people want to know you are sorry. Studies have shown apologies will substantially reduce the incidents of malpractice lawsuits (or resolve them sooner).

39 Oklahoma s Law H. Statements, conduct, etc. expressing apology, sympathy, etc. - Admissibility - Definitions. A. In any medical liability action, any and all statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence which are made by a health care provider or an employee of a health care provider to the plaintiff, a relative of the plaintiff, or a representative of the plaintiff and which relate solely to discomfort, pain, suffering, injury, or death as the result of the unanticipated outcome of the medical care shall be inadmissible as evidence of an admission of liability or as evidence of an admission against interest.

40 Oklahoma (Cont'd.) B. For purposes of this section, unless context otherwise requires, "relative" means a spouse, parent, grandparent, stepfather, child, grandchild, brother, sister, half-brother, halfsister or spouse's parents. The term includes said relationships that are created as a result of adoption. "Representative" means a legal guardian, attorney, person designated to make decisions on behalf of a patient under a durable power of attorney or health care proxy, or any person recognized in law or custom as an agent for the plaintiff.

41 Illinois Law The providing of, or payment for, medical, surgical, hospital, or rehabilitation services, facilities, or equipment by or on behalf of any person, or the offer to provide, or pay for, any one or more of the foregoing, shall not be construed as an admission of any liability by such person or persons.

42 Illinois (Cont'd.) Any expression of grief, apology, or explanation provided by a health care provider, including, but not limited to, a statement that the health care provider is "sorry" for the outcome to a patient, the patient's family, or the patient's legal representative about an inadequate or unanticipated treatment or care outcome that is provided within 72 hours of when the provider knew or should have known of the potential cause of such outcome shall not be admissible as evidence (emphasis added).

43 The best business practice will always be Providing Quality Care. Don t put profits above care.

44 Don t need me But I m here if you do! Mark J. Silberman Partner Health Care Benesch, Friedlander, Coplan & Aronoff LLP 333 West Wacker Drive, Suite 1900 Chicago, IL Ph: Cell: Fax: MSilberman@beneschlaw.com 44

45 Disclaimer (Lawyers Love Disclaimers) This presentation and handouts are for general information and do not include a full legal analysis of the matters presented. They should not be construed or relied upon as legal advice or legal opinion on any specific facts or circumstances. 45