PLUS Medical Professional Liability Symposium

1. PLUS Medical Professional Liability Symposium D, Brent Mulgrew Executive Director OSMA

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3. 3 Professional Liability Crisis�Critical Condition�

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9. 9 What we�re seeing in Ohio �Soaring malpractice premiums stun many doctors��USA Today

10. 10 What we�re seeing in Ohio �Malpractice-insurance rates in Cleveland among highest in nation��Cleveland Plain Dealer

11. 11 What we�re hearing in Ohio

12. 12 What we�re hearing in Ohio

13. 13 The Ohio physician�s experience

14. 14 The impact� Increased expenses Time poverty Revenue remains flat to declining Reduced income Decreased access to patient care discontinuing some procedures (96%) leaving for less litigious areas (15%) quitting the practice all together (51%)

15. 15 Ohio�s PLI History 1974-75 PLI availability disappears OSMA�s response: Omnibus HB 682-Medical Multiple tort reform provisions-4yr S/L, Pretrial Arb, limitations on experts, voluntary arb. 250K cap most sections declared unconstitutional 1980 OSMA establishes physician owned PLI company Multiple entrants in marketplace by1980-Availability increasing, price increases slow to inflation 1982-86 Market tightens, prices spike OSMA�s response: Broad based Tort Reform include business coalitions

16. 16 History 1990--Held unconstitutional, but prices stable OSMA�s response: 1995 HB 350 Broad based Tort Reform--Unconstitutional 1999 Do you detect a pattern?? Without changing the Supreme Court--legislation is useless 2001-02 Market deteriorates as prices spike and availability disappears

17. 17 Action taken�

18. 18 The OSMA�s response�

19. 19 Senate Bill 281 Limits noneconomic damage awards in the vast majority of cases to $350,000 : In most cases, noneconomic damages against a health-care provider will be limited to $350,000. (No limits are set on economic damages.) The reasonable reforms contained in the bill will bring predictability to an otherwise unpredictable medical liability system, thereby stabilizing the volatile insurance market. Also, defense attorneys predict that because of the proof required for successful derivative claims, it will be more difficult to win those upper-limit awards.: In most cases, noneconomic damages against a health-care provider will be limited to $350,000. (No limits are set on economic damages.) The reasonable reforms contained in the bill will bring predictability to an otherwise unpredictable medical liability system, thereby stabilizing the volatile insurance market. Also, defense attorneys predict that because of the proof required for successful derivative claims, it will be more difficult to win those upper-limit awards.

20. 20 Senate Bill 281 Requires attorney contingency fees to be reviewed by a probate court if the fees exceed the noneconomic damage awards This provision is intended to protect against having attorney fees taken out of any economic damage money that is awarded to the patient.This provision is intended to protect against having attorney fees taken out of any economic damage money that is awarded to the patient.

21. 21 Senate Bill 281 Establishes a statute of repose Presently, physicians could be liable for injuries that occurred 10, 20, even 30 years ago. Now, a patient has to discover the injury and file a claim within four years. Any claim that is older than four years will be barred, except for cases involving minors and persons of unsound mind.Presently, physicians could be liable for injuries that occurred 10, 20, even 30 years ago. Now, a patient has to discover the injury and file a claim within four years. Any claim that is older than four years will be barred, except for cases involving minors and persons of unsound mind.

22. 22 Senate Bill 281 Protects physicians from the notice of a claim being used against him/her The 180-day notice of intent is in current law. The fact that insurance companies may not use the notices of �intent to sue� against physicians in setting rates is new. The 180-day notice of intent is in current law. The fact that insurance companies may not use the notices of �intent to sue� against physicians in setting rates is new.

23. 23 Senate Bill 281 Allows evidence of collateral source payments Juries will now be able to consider if the patient is receiving money from other sources before setting awards for damages. This should result in lower awards, and will prevent double recovery. Juries will now be able to consider if the patient is receiving money from other sources before setting awards for damages. This should result in lower awards, and will prevent double recovery.

24. 24 Senate Bill 281 Provides for periodic payment of future damages This structured settlement option will help the patient in meeting his or her long-term financial and medical needs. It also means that physicians will not be forced to pay out large settlement amounts at one time. This structured settlement option will help the patient in meeting his or her long-term financial and medical needs. It also means that physicians will not be forced to pay out large settlement amounts at one time.

25. 25 Senate Bill 281 Strengthens Ohio�s current arbitration law Patients can now be asked to sign an agreement that says any dispute over the outcome of a medical procedure or treatment would be handled through arbitration, and that both parties would agree to the decision made by the impartial third party. Such an agreement would become irrevocable after 30 calendar days. (Current law allowed revocation up to 90 days after the last treatment.) The OSMA will work on creating a model binding arbitration agreement form for use by its members. Patients can now be asked to sign an agreement that says any dispute over the outcome of a medical procedure or treatment would be handled through arbitration, and that both parties would agree to the decision made by the impartial third party. Such an agreement would become irrevocable after 30 calendar days. (Current law allowed revocation up to 90 days after the last treatment.) The OSMA will work on creating a model binding arbitration agreement form for use by its members.

26. 26 Related Tort Reform Legislation Senate Bill 120 Removes joint and several liability In other words, in most cases, a physician who is named in a suit will only be held liable for the portion of the claim for which he or she may be responsible Senate Bill 179 Provides a broader base of peer review protections Allows health-care entities outside the traditional hospital setting to establish peer review committees The activities are protected from discovery during litigation

27. 27 IMPACT No reduction in rates or trend Increased numbers of failure to renew Selective underwriting of risks/specialties Increased demand for hospital provided ins. Credit history/psychological prescreens Creation of new nonstandard market options Risk retention groups, off shore or friendly state captives and OWAs. Ohio Hospital Assn. Creates new options for physicians through their institutions