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Louisiana Hospital Association

Louisiana Hospital Association. Medical Malpractice 2010. 2009/10 $3,981,919 44 2007/08 $3,342,400 44 2005/06 $3,304,508 37 2003/04 $2,010,588 36 2000/01 $1,476,257 27 1995/96 $1,137,772 24 1992/93 $ 988,671 20.

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Louisiana Hospital Association

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  1. Louisiana Hospital Association Medical Malpractice 2010

  2. 2009/10 $3,981,919 44 2007/08 $3,342,400 44 2005/06 $3,304,508 37 2003/04 $2,010,588 36 2000/01 $1,476,257 27 1995/96 $1,137,772 24 1992/93 $ 988,671 20 PCF Administrative Expenses & Number of Employees Per Fiscal Year 2 2

  3. The next slide represents the number of requests for medical review panels received by the PCF during each calendar year shown. As you will note, the numbers steadily increased from 1977 through 2000, then in 2001 there was a spike. This was the result of 750 requests being filed concerning the drug Resulin where adverse results were alleged. All of these panels were dismissed without payments by the PCF. A filing fee was imposed in August 2003, which appears to have resulted in a decrease in panels filed. Following Hurricane Katrina, there has been a further decline in panel requests filed. There were 197 requests filed at the end of 2005 and into 2006 as a result of Hurricane Katrina. Medical Review Panels 3 3

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  5. The Act was amended in 1984 to “uncap” related medical expenses and benefits. Currently, the PCF pays ongoing medical expenses on 168 patients in the amount of approximately $1,300,000 per month. Over $232,738,047 has been paid by the PCF for ongoing medical expenses (paid after settlement & as incurred) since the change in the Act. The PCF began using a fee schedule in November 2001, which has resulted in significant savings. Medical expenses include not only physician visits and hospitalizations, but handicapped equipped vehicles, specialized wheelchairs, home modifications, and payments to family members for providing care in the home. Future Medicals 8 8

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  7. Over $9 million – 2 $6 - $7.9 million – 7 $4 - $5.9 million – 11 $2 - $3.9 million – 44 $1 - $1.9 million – 118 Largest single payment of Past Medical expenses: $5.3 million (excludes general damages & interest) (These figures include general damages and medical expenses paid to date on individual claims) The Largest Total Payments by the PCF 10 10

  8. RATE INCREASES OVER THE YEARS YEARSPHYSICANS %HOSPITALS % Jan-09 5.0 5.0 Jan-08 7.4 8.9 Jan-07 11.0 10.4 Jan-06 8.6 6.9 Jan-05 0 0 Jan-04 9.8 1.6 Jan-03 19.8 17.0 Jan-02 8.8 6.3 Jan-01 6.3 5.1 Jan-00 17.0 6.4 Jan-99 0 0 Jan-98 6.0 3.5 Jan-97 17.0 9.0 July-96 0 0 July-95 0 0 July-94 8.1 8.1 July-93 7.8 23.0 July-92 21.8 (37.0)* 56.3 (176.6)* July-91 17.5 (45.7)* 22.5 (187.7)* July-90 10.0 2.5 Jan-89 10.0 10.0 * Actuary recommendation 13

  9. Sample Rates Over the Years(for PCF Layer only)Occurrence Coverage Specialty 1987 1997 2009 1987-2009 Hospital (per bed) $ 524 $ 1640 $ 3251 + 620% Internist 2030 2906 12536 + 617% Gen.Surg 4443 10490 24173 + 544% OB/GYN 8490 20046 46195 + 544% 14

  10. *States with multiple companies writing and geographic disparities. Number represents a simple average of those rates. **Louisiana has two companies writing and geographic disparities. Also has a surcharge. Number represents a simple average of the combination of products, base rates, and surcharges. Data Source: Medical Liability Monitor, October 2007 Issue, Vol. 32, No. 10 Medical Liability Rate Comparison 16

  11. Certify question of adequacy of remedy. Supreme Court Denied 904 So. 2d 708 Declared the cap unconstitutional because of the inadequate remedy - 940 So. 2d 777; S. Court remanded. S. Ct. “was never briefed and argued before the district court…” do over Constitutional Cases: Arrington and Taylor Third Circuit 19 19

  12. Establishes the “Sibley Hearing” in trial courts to determine whether the statute is constitutional after affording both parties an opportunity to adduce evidence and present arguments Sibley vs. Board of Supervisors of LSU 20 20

  13. Arrington, 970 So.2d 540, Back to the 14th JDC Taylor v. Clement, 970 So. 2d 545, Back to the 14th JDC. Constitutional Cases 21 21

  14. Arrington v. Galen Medical, 897 So.2d 909 certified S.Ct refused Then, remanded by the third circuit on all issues, equal protection, due process, judicial powers, judicial jurisdiction prohibition on special laws. Constitutional Cases 22 22

  15. Butler v. Flint Goodrich, 607 So. 2d 517 Adequate remedy authority to enforce rights in Louisiana law adequate not a limit on legislature. The judiciary does not have the right to enforce over above the law. Constitutional Cases 23 23

  16. Oliver v. Magnolia Clinic Remanded to the Third Circuit Sibley Hearing – Tuesday, November 3, 2009 14th JDC Constitutional for doctors and hospitals, not APRN. Rehearing APRN too. Constitutional Cases 24 24

  17. Third circuit will have to reverse the judges factual finding that the statute has a rational basis and substantially furthers a substantial state purpose Oliver v. Magnolia Clinic (cont.) 25 25

  18. Patel cases 426 un-needed surgeries OLOL settled for $7.4 million Lafayette General - $2.9 million Intentional Act? Prescription? 53 reserved their rights against the PCF 7 seeking big awards. 4 deaths with 2 liability bound? Found guilty on 51 fraud counts Cases of Interest 26 26

  19. The OB/Gyn Collector Hundreds of Patients Invasion of Privacy Divorce and Bankruptcy Liability not Bound Cases of Interest 27 27

  20. Hurricane cases 200 cases Nursing home cases want MMA Cover Hospital Cases want no MMA Consistent not Med Mal Cases of Interest 28 28

  21. Increased patient access to needed medical care within Louisiana Ensure the adequate supply of physicians and other healthcare providers within the state to provide medical care Ideally, reduce the cost of medical liability insurance. At a minimum, reduce the rate of increase of medical liability insurance within the state so that we can be competitive with other states. Goals of Louisiana Hospitals 29 29

  22. Limit the frequency of claims files that do not have merit In order to fulfill obligations of providers to those injured, strengthen the financial position of the Louisiana Patients Compensation Fund (PCF) or its successor Improve data collecting and reporting on claims regarding frequency, severity, etc. Goals of Louisiana Hospitals 30 30

  23. While Louisiana’s cap has helped keep losses predictable, it alone has not made professional liability coverage affordable. Louisiana’s qualified healthcare providers pay much more than they do in states that have tort reform beyond mere caps. Raising the cap should only be considered with other fundamental reforms to lower frequency and stop over-rewarding of certain patients at the expense of the viability of the entire system. Policy Considerations 31 31

  24. Part of the original compromise Plaintiff’s benefit? Streamline or eliminate Medical Review Panels 32 32

  25. Just review the medical record No depositions Evidence or not Expert witness or not Medical Review Panels 33 33

  26. Can waive now One side waive without concurrence and loser pays Medical Review Panels 34 34

  27. A better way to provide an affordable system of medical malpractice. Create a system that limits the PCF responsibility to future medicals. Require all benefits except future medicals be paid by the first layer coverage. Require the underlying layer to pay a quota share of second layer. Create a constitutional separation of PCF funds from the state. Constitutionally eliminate the ties to the state civil service system by setting up a mutual company with start up of the PCF cash. Protect the LIGA fund by statute. Legislative Activities 35 35

  28. Plaintiff’s bar: Just raise the cap Provider’s: We pay enough. What are you willing to do? Legislative Activities 36 36

  29. Samaha v. Rau • Physician wins Unanimous Panel • Motion for Summary Judgment • Trial court grants, First Circuit reverses • Supreme Court, Justice Traylor reverses and reinstates the trial court judgment 37 37

  30. Certificate of Merit Louisiana style Eliminate Samaha extensions and require the expert opinion or affidavit within 90 days Legislative Activities 38 38

  31. Just Raise the cap-rejected by providers Nursing home cases Hospital end of life cases Create limit on general damages of $500,000 Add potential for Economic Damages Separate cap for Economic Damages Cap of $750,000 no more than $500,000 general Legislative Activities 39 39

  32. Federal Tort Reform • George W. Bush focus on non-economic damages cap of $500,000 • Historically, lawyers have favored Democratic politicians, while doctors have leaned toward Republicans.

  33. Federal Tort Reform • Defensive medicine to defend potential malpractice suits - costs huge • About 1% of the healthcare system • Comes out of the physicians net income

  34. Federal Tort Reform • Grants of up to $3 million to states and health systems to test new approaches to medical liability • When it comes to medical liability reform and tort reform, it needs to be studied • Washington Post

  35. Federal Tort Reform • Congressional Budget Office and the Government Accountability Office have examined whether medical malpractice issues add to healthcare spending and concluded in recent years that the link is tenuous.

  36. LA Medical Malpractice Act • Louisiana has one of the toughest laws in the Country • $500,000 cap on damages, including economic damages • Excludes judicial interest and medical expenses (see 68LALR955) • Is it adequate (see 69LALR417)

  37. A physician’s view

  38. President Obama • Is so far not willing to consider capping malpractice judgments, a reform proposal consistently put forward by Republicans. • “What I would be willing to do is to consider any ideas out there that would actually work in terms of reducing costs, improving the quality of patient care” • CBS Sixty Minutes

  39. Federal Tort Reform • Rep. Jeb Hensarling, R-Texas,…has a “hard time” believing the measure (damage caps) will make its way into the reform package given the fact that trial attorneys are big contributors to the Democratic Party. • Fox News

  40. Federal Tort Reform • Federal grants could be given to states to set up specialized “health courts.” • Establish more stringent witness qualifications • Allow apology and settlements without admitting responsibility (National Data Bank)

  41. There are a range of alternatives: • Having medical experts review malpractice suits before they go to court • Encourage, when appropriate, some form of mediated arbitration in place of lawsuits… • CBS Sixty Minutes

  42. Clark R. Cossé III Chief Governmental Officer & Legal Counsel Louisiana Hospital Association 9521 Brookline Avenue Baton Rouge, LA 70809 (225) 928-0026 ccosse@lhaonline.org The mission of the Louisiana Hospital Association is to support its members through advocacy, education and services. 50 50

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