Medical Malpractice in Tennessee. August 25, 2018

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1 Medical Malpractice in Tennessee August 25, 2018

2 Outline Recent History and Reporting Requirements Incidence of Claims in Tennessee Annual Damages Nature and Severity of Claims Geography and Specialties Judgments Defense Costs Overall Trends and Tort Reform

3 Recent History and Reporting Requirements In 2004, the Tennessee General Assembly enacted 2004 Tenn. Pub. Acts Ch. 902 Law passed by the Joint Tort Reform Subcommittee In response to concerning number of frivolous lawsuits, both healthcare-related and non-healthcare Chaired by State Representative Rob Briley and Senator David Fowler. Intent was to provide the committee with a clearer picture of the litigation and claim trends in Tennessee... Established reporting obligations for medical professional liability claims Reporting entities: Insurance companies Health care professionals lacking medical malpractice insurance

4 Recent History and Reporting Requirements Original 2004 Reporting Requirements, annually: Number of medical malpractice or professional liability claims asserted Amount of damages alleged Any damages paid Types of paid damages Legal fees paid. Included claims that were both closed and pending during each calendar year Modified every 2-3 years since, now includes: Requirement for counsel of claimants to report fee arrangements and expenses Claimant s counsel required to report whether the health care provider named in the claim received payment from TennCare for the incident

5 Incidence of Claims in Tennessee Claims Resolved Through Settlement Claims Resolved Through ADR Claims Resolved Through Judgment Claims Otherwise Resolved* Total Number of Claims Closed 2013 Totals 2014 Totals 2015 Totals 2016 Totals ADR Alternative Dispute Resolution (mediation and arbitration) * Cases settled by private trial, dismissed without action, or other common dispute resolution methods

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7 Annual Damages Cases closed in 2016 Damages asserted by claimants totaled: $3,386,968,735

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11 Annual Damages Cases closed in 2016 Damages asserted by claimants totaled: $3,386,968,735 Damages paid: $66,223, % of damages asserted were actually paid

12 $49,500,000

13 $49,500,000

14 $49,500,000

15 $49,500,000

16 $49,500,000

17 $17 million

18 Annual Damages Cases closed in 2016 Damages asserted by claimants totaled: $3,386,968,735 Damages paid: $66,223, % of damages asserted were actually paid Claims filed but still pending in 2016 (3,495 total) Damages asserted by claimants totaled: $11,226,977,579

19 Pending 2016 Tennessee Medical Malpractice Asserted Damages Annual GDP (in $ millions)

20 Annual Damages Cases closed in 2016 Damages asserted by claimants totaled: $3,386,968,735 Damages paid: $66,223, % of damages asserted were actually paid Claims filed but still pending in 2016 (3,495 total) Damages asserted by claimants totaled: $11,226,977,579 Damages paid to date: $28,883,895 Extrapolated expected total payment, based on 1.95%: $218,926,062

21 Nature of Claims in 2016 $ Per Claim Rank Type of Malpractice $ Paid Since Claim Inception Number of Claims $ Paid Per Claim 1 Monitoring $20,023, $112, Diagnosis $21,801, $82, Equipment/Product $1,057, $81, Obstetrics $5,993, $72, Surgery $19,451, $67, IV & Blood Products $865, $61, Anesthesia $939, $33, Treatment $14,185, $28, Medication $2,135, $24, Totals $66,429, ,279

22 Severity of Claims in 2016 Severity of Injury $ Paid Since Claim Inception Number of Claims $ Paid Per Claim Major Permanent $14,530, $234, Quadriplegic, Brain Damage, Lifelong Care $6,296, $209, Signficant Permanent $10,629, $180, Death $34,722, $110, Minor Permanent $3,547, $73, Major Temporary $11,387, $55, Minor Temporary $4,425, $18, Emotional Injury Only $283, $4, Insignificant $139, $3, Totals $85,962, ,060

23 Geography of 2016 Claims by Tennessee County County Name $ Paid Since Claim Inception Number of Claims $ Paid Per Claim 2010 Census Population Per Capita Number of Claims Williamson $2,801, $107, , Knox $9,824, $80, , Shelby $19,073, $47, , Rutherford $1,565, $43, , Hamilton $4,476, $35, , Sullivan $1,121, $32, , Davidson $8,915, $29, , Madison $1,302, $19, , Bradley $465, $18, , Sumner $592, $14, , Totals $50,137, ,185

24 Specialties Most Involved in 2016 Claims Type of Specialty $ Paid Since Claim Inception Number of Claims $ Paid Per Claim Surgery $3,798, $165, Ob/Gyn $1,377, $33, Emergency Medicine $1,872, $29, APRN $1,005, $23, Orthopaedic Surgery $590, $21, RN $628, $21, Internal Medicine $761, $14, Dentist $304, $13, Neurological Surgery $1,133, $9, Totals $11,471,

25 Judgments 42 Court Judgments in ruled in favor of the defendant and NO damages were awarded 5 judgments were entered in favor of plaintiff

26 Judgments in Favor of Plaintiff 2016 Type of Provider/Spec ialty/facility MD/Surgery/ Hospital DO/Family Medicine/Offi ce MD/Ortho Surgery/Hospi tal Corporations Staffing/ASC MD/Ortho Surgery/ASC Damages Claimed Amount Paid Economic Damages Non- Economic Damages Punitive Damages Severity of Injury $3,250,000 $986,067 $236,067 $750,000 $0 Major Permanent $2,250,000 $406,250 $195,000 $211,250 $0 Minor Temporary $500,000 $100,000 $0 $100,000 $0 Minor Temporary $1,850,000 $250,000 $0 $250,000 $0 Minor Permanent $1,850,000 $250,000 $0 $250,000 $0 Minor Permanent

27 Judgments Economic damages: Compensation for objectively verifiable monetary losses Past and future medical expenses Loss of past and future earnings Loss of use of property, costs of repair or replacement Economic value of domestic services Loss of employment or business opportunities Non-economic damages: Compensation for subjective, non-monetary losses Pain, suffering, inconvenience Emotional distress Loss of society and companionship Loss of enjoyment of life. Punitive damages: Damages awarded for the purpose of punishment To deter intentional or reckless behavior or actions motivated by malice They are not awarded to compensate any loss.

28 Judgments in Favor of Plaintiff 2016 Type of Provider/Spec ialty/facility MD/Surgery/ Hospital DO/Family Medicine/Offi ce MD/Ortho Surgery/Hospi tal Corporations Staffing/ASC MD/Ortho Surgery/ASC Damages Claimed Amount Paid Economic Damages Non- Economic Damages Punitive Damages Severity of Injury $3,250,000 $986,067 $236,067 $750,000 $0 Major Permanent $2,250,000 $406,250 $195,000 $211,250 $0 Minor Temporary $500,000 $100,000 $0 $100,000 $0 Minor Temporary $1,850,000 $250,000 $0 $250,000 $0 Minor Permanent $1,850,000 $250,000 $0 $250,000 $0 Minor Permanent

29 Defense Costs Paid in 2016 Pending Claims Closed Claims $ to Defense Counsel Expert Witness Fees Court Costs Deposition Costs Other Legal Fees 57,268,973 2,362,568 45, ,700 1,576,827 17,278, ,002 23, , ,737 Total 74,547,489 3,067,570 69, ,230 2,510,564 Total of $80,822,468 paid in defense costs in 2016 $74,547,489 to defense counsel 92% of defense costs

30 Overall Trends and Recent History 2008 Tort Reform in Tennessee Providers must be given a 60-day written notice of a complaint filed against them Certificate of Good Faith clause Plaintiffs must consult with one or more top-rated witnesses and receive a written statement stating the complaint has merit 2011 Tort Reform in Tennessee Caps on Malpractice payouts: Compensation for any noneconomic damages suffered by each injured plaintiff not to exceed $750,000 Can increase to $1,000,000 cases of catastrophic loss These limits are a total cap regardless of how many defendants are involved Estimated 35-40% decrease in volume of medical liability claims filed against physicians in Tennessee since before Hamilton County Judge Rules 2011 Tort Reform Caps Unconstitutional Based on jury s right to award monetary damages Tennessee Supreme Court has so far declined to weigh in on Hamilton County ruling

31 Thank you