© 2014 norcal mutual insurance company monica moreno, senior underwriter david anderson, claims...

© 2014 NORCAL Mutual Insurance Company

Monica Moreno, Senior Underwriter

David Anderson, Claims Manager

Jane Mock, Risk Management Specialist

Professional Liability Insurance 101The Basics


Disclosures

There are no commercial supporters for this activity. The sponsor, planners and authors have nothing to disclose. This activity does not include a discussion of unapproved drugs or devices.


DISCLAIMERThe information contained herein and presented by the speakers is based upon sources believed to be accurate at the time they were referenced.

The speakers are not engaged in rendering legal or professional services other than risk management. If legal advice is required, the services of an attorney should be sought.

This document was designed for discussion purposes only and is not intended to present detailed information on our analysis and findings. It is incomplete and not intended to be used without the accompanying oral presentation.


Who We Are

► NORCAL Mutual Insurance Company• Member of the NORCAL Group

► Monica Moreno• Senior Underwriter

► David Anderson• Claims Manager

► Jane Mock• Risk Management Specialist


Underwriting


Types of Insurance Companies

► Traditional (Admitted) Carriers• Regulated by Department of Insurance (DOI)

► Non-Traditional (Non-Admitted) Carriers• Subject to different regulations



► Mutual Insurance Company► Inter-Insurance Exchange► Stock Insurance Company► Risk Retention Group► Self Insurance & Self Insured Retention



► Considerations when selecting a company• Stability, Credit Rating, A.M. Best• Customer Service



► Considerations when selecting a company• Consent Holder

oPhysician? Administrator?oVelvet Hammer Clause?

• Track Record• Defense Oriented


Structure of Insurance Companies

► Outward Facing• Underwriting• Claims• Risk Management• Sales & Marketing


Structure of Insurance Companies

► Internal• Finance• Operations• IT


Types of Professional Liability Insurance

► Occurrence Policy• Coverage is triggered by the date of occurrence as

defined in the policy



► Claims Made Policy• Coverage triggered by effective date and date

claim is reported• Retroactive date determines how far back the

coverage extends• Prior Acts Coverage (Nose)• Extended Reporting Endorsements (Tail)



► Reinsurance► Excess or Umbrella Policy


Coverages on Professional Liability Policies

► Professional Liability• Individual and Entity• Facility (surgery center, imaging center, etc.)• Hospital

► Premise Liability or General Liability



► Administrative Actions► Professional Committee Activities• Peer Review, Credentialing, Quality Assurance,etc.



► Information & Network Security• Customer Notification & Credit Monitoring• Electronic Data Recovery• Regulatory Privacy Proceedings

► Employee Related Civil Actions


Specifics of Coverage

► Policy Limits• Indemnity & Expense• Per Claim Limits• Aggregate Limits


Specifics of Coverage

► State Compensation Funds► Deductibles► Common Policy Exclusions► Special Exclusions


Underwriting Processes

► Specialty• High vs. Low Risk

► Practice Location• State / County



► Limits of Liability• $1M/$3M, $2M/$4M

► Additional Exposures• Mid-levels, Vicarious Liability, Entity Exposure



► Discounts & Credits• Risk Management• New Doctor• Part Time• Dividend



► Surcharges & Debits • Based on experience and/or practice profile• Requires prior filing and approval from DOI


Claims


Professional Liability Claims in California

► Regulation

► Evaluation

► Resolution

► Reporting Requirements


California’s MICRA Law

► Enacted in 1975 to control runaway jury verdicts and malpractice premiums

► Imposes a $250,000 cap on noneconomic damages (uncapped economic damages)

► Allows defendants to periodicize payment of future medical costs



► Imposes statute of limitations to file lawsuits• One year from the date a reasonable person

would discover or suspect negligence or,• Three years from the date of treatment.• Statute is tolled for retained foreign bodies or

fraud.• Extended statute for injuries to a minor,

depending upon the nature of the injury



► Perpetually under attack by Plaintiff’s bar in California• Initiative measure proposed for 2014 elections• Increasing general damages cap over $1,000,000

(pegged to inflation)• Requiring drug testing of physicians• Expanding scope of CURES database


Evaluating a case for Liability

► Three major elements:

• Standard of Care

• Causation

• Damages



► Standard of Care• CACI Instruction 502:

A medical specialist is negligent if he/she fails to use the level of skill, knowledge and care in diagnosis and treatment that other reasonably careful medical specialists would use in the same or similar circumstances. This level of skill, knowledge, and care is sometimes referred to as “the standard of care.”

You must determine the level of skill, knowledge, and care that other reasonably careful medical specialists would use in the same or similar circumstances, based only on the testimony of the expert witnesses including defendant who have testified in this case.



► Standard of Care• CACI Instruction 505:

A healthcare professional is not necessarily negligent just because his or her efforts are unsuccessful or he or she makes an error that was reasonable under the circumstances. A healthcare professional is negligent only if he or she was not as skillful, knowledgeable, or careful as other reasonable healthcare professionals would have been in similar circumstances.



► Causation• CACI Instruction 430:A substantial factor in causing harm is a factor that a reasonable person

would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm

• CACI Instruction 431:A person’s negligence may combine with another factor to cause harm. If

you find that defendant’s negligence was a substantial factor in causing plaintiff harm, then defendant is responsible for the harm. Defendant cannot avoid responsibility just because some other person, condition, or event was also a substantial factor in causing plaintiff harm



► Damages• Noneconomic Damages (pain and suffering)• Economic Damages

oPast and Future Medical CostsoPast and Future Loss of EarningsoPast and Future Loss of Household ServicesoPast and Future Costs of Attendant Care (family or

professional)• Punitive Damages


Resolving a Claim

► Who holds right to consent?► Factual Evaluation• Medical Expert Reviews• Deposition Testimony

► Practical Evaluation• Sympathy Factor• Jury Pool• Opposing Counsel


Resolving a Claim – Settling

► Settlement Conferences• Voluntary vs. Mandatory

► Mediations► Informal Negotiations

► Arbitrations• Binding vs. Nonbinding



► Settlement Agreement and Release• Binding legal document

► Minor’s Compromise• Required in cases involving a child or dependent

adult

► Dismissal of Lawsuit



► Typical Components of a Release• Waiver of future and unknown claims

oAdditional medical needsoWrongful death

• Confidentiality clause• Respective costs borne by each side• Obligation to confirm and pay liens (known and

unknown) assumed by the plaintiff


Resolving a Claim - Adjudication

► Terminating Sanctions by the Court• Failure to serve• Failure to prosecute

► Demurrer► Motion for Summary Adjudication (MSA)► Motion for Summary Judgment (MSJ)► Jury Trial► Binding Arbitration


Claims - Reporting Requirements

► National Practitioner Data Bank• Triggered by a written complaint/demand• Every Settlement gets reported, regardless of

amount paid• NPDB guidelines apply to Corporations making

indemnity payments on a practitioner’s behalfo Insurance company, Medical Group, RRG, etc.

• Guidelines do not apply to Individuals making a payment from personal funds on her own behalf



► Medical Board of California• Section 801 Reports• Medical Board (MD and PA)• Osteopathic Medical Board• Nursing Board

► Different Requirements for other states• Self-Report• Insurance Company Reports• Attorney Reports



► Centers for Medicare and Medicaid Services (CMS)• Insurance Carriers are designated a Responsible

Reporting Entity• Every payment made to a Medicare Beneficiary is

reported


Risk Management


Risk Management Program Components

► A strong risk management program is:

• Collaborative• Multidisciplinary• Consultative• Educational



► A strong risk management program will strive to:

• Decrease frequency and severity of claims• Increase defensibility of claims• Enhance the practice of medicine through

education



► A strong risk management program will strive to:

• Improve loss ratios• Improve patient outcomes• Improve patient satisfaction


Risk Management Approach

► A strong risk management program will identify risk exposures through analysis of:

• Claims• Incidents• Adverse outcomes• Indemnity and expense payments


NORCAL Risk Management

► Systems support patient diagnosis• Communication• Follow-Up• Documentation

► Breakdowns in those systems can lead to claims and poor patient outcomes

► Help practices to close gaps


NORCAL Risk Management

► Risk Assessments► Phone Consultation► Continuing Medical Education► Presentations► Monthly Claims Rx► Large library of resources available


Risk Assessments

► Medical Records► Follow-Up► Patient Hand-Offs► Telephone Liability► Medical Assistants (Unlicensed Assistive Personnel)


Risk Assessments

► Mid-Level Practitioners► Medication Management► Informed Consent/Refusal► Patient Abandonment► Billing and Collections


Phone Consultation

Most Common Issues

► Medical Record Retention► Medical Record Release – Confidentiality► Content of the Medical Record► Difficult Patients► Patient Dismissal from Practice


Phone Consultation

Most Common Issues

► Minor Consent► Medical Emergencies► Closing Practice► Financial/Billing Issues► Interpreters


NORCAL Claims Rx 2014 Topics

► JanuaryPatient Safety Implications of Incorporating Insurance Status Into Clinical Decision-Making

► FebruarySupervision of and Collaboration with Mid-level Practitioners

► MarchElectronic Health Record Issues

► AprilMedical Ethics & Professional Liability



► MayMental and Behavioral Health Issues

► JunePain Management & Managing the Risks of Opioid Prescribing

► JulyMaternal Morbidity in Obstetrics

► AugustIssues Associated with Lung Cancer Screening & Diagnosis



► SeptemberManaging Care of Septic Patients

► OctoberSleep Apnea and Emerging Issues in Anesthesia

► NovemberEmergency Medicine Issues & EMTALA Considerations

► DecemberOverview of Cardiology Claims


2014 Continuing Medical EducationLive Presentation Topics

► E-Communication► Strategies to Minimize Risk► Behaviors that Undermine a Culture of Safety► Pain Management & Prescribing Opioids► Electronic Health Records► Hand-Offs & Communication


2014 Continuing Medical EducationLive Presentation Topics

► Documentation► Informed Consent/Refusal► Allied Health► Learning from Lawsuits► Disclosure of Unanticipated Outcomes► Physician Stress & Burnout


2014 Continuing Medical EducationCME Course Books & Webcasts

CME Course Books► Consent Issues in Patient Care► Responses to Litigation Stress

Webcast► Disclosure of Unanticipated Outcomes


Q & A


UnderwritingDoug Aldrich

[email protected]

ClaimsDavid Anderson

[email protected]

Risk ManagementJane Mock

[email protected]

CONTACT INFORMATION

© 2014 norcal mutual insurance company monica moreno, senior underwriter david anderson, claims...

Documents

company stability

umbrella policy slide

professional services

best customer service

hospital premise liability

date of occurrence

effective date

date claim