Louisiana Hospital Association
Medical Malpractice 2010
PCF Administrative Expenses &
Number of Employees Per Fiscal Year
2009/10
2007/08
2005/06
2003/04
2000/01
1995/96
1992/93
$3,981,919
$3,342,400
$3,304,508
$2,010,588
$1,476,257
$1,137,772
$ 988,671
44
44
37
36
27
24
20
2
Medical Review Panels
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.
3
4
5
6
7
Future Medicals
• 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.
8
9
The Largest Total Payments by the PCF
•
•
•
•
•
•
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)
10
CALENDAR YEAR
TOTAL SURCHARGES COLLECTED BY PCF
TOTAL CLAIM PAYMENTS BY PCF
1982
1983
1984
1985
1986
1987
1988
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
$2,884,864.67
$4,148,865.43
$5,153,678.86
$12,013,068.41
$15,916,012.28
$18,261,377.15
$20,901,551.49
$24,830,374.49
$26,576,048.67
$30,596,664.64
$38,622,251.88
$46,256,338.17
$51,477,940.22
$55,217,831.50
$56,578,400.40
$65,313,768.52
$71,749,109.12
$71,960,541.93
$84,863,222.09
$94,201,761.05
$105,298,716.37
$124,223,011.32
$137,315,747.05
$135,612,584.94
$141,193,696.19
$157,052,308.00
$173,952,449.00
$2,586,274.02
$3,001,981.95
$7,264,660.22
$9,776,309.69
$10,629,827.06
$18,363,837.59
$14,834,849.78
$20,716,575.41
$28,941,633.95
$32,910,271.25
$36,679,873.14
$49,061,145.87
$40,840,326.95
$44,289,624.39
$61,731,090.91
$57,925,990.96
$68,967,525.00
$81,833,845.68
$67,489,605.05
$68,187,734.86
$74,974,624.31
$80,740,866.01
$71,694,201.73
$76,591,565.38
$111,420,633.93
$108,295,176.00
$109,516,301.00
12
RATE INCREASES OVER THE YEARS
YEARS
Jan-09
Jan-08
Jan-07
Jan-06
Jan-05
Jan-04
Jan-03
Jan-02
Jan-01
Jan-00
Jan-99
Jan-98
Jan-97
July-96
July-95
July-94
July-93
July-92
July-91
July-90
Jan-89
* Actuary recommendation
PHYSICANS %
5.0
7.4
11.0
8.6
0
9.8
19.8
8.8
6.3
17.0
0
6.0
17.0
0
0
8.1
7.8
21.8 (37.0)*
17.5 (45.7)*
10.0
10.0
HOSPITALS %
5.0
8.9
10.4
6.9
0
1.6
17.0
6.3
5.1
6.4
0
3.5
9.0
0
0
8.1
23.0
56.3
22.5
2.5
10.0
(176.6)*
(187.7)*
13
Sample Rates Over the Years
(for PCF Layer only)
Occurrence Coverage
Specialty
Hospital (per bed)
Internist
Gen.Surg
OB/GYN
1987
$ 524
2030
4443
8490
1997
2009
1987-2009
$ 1640
2906
10490
20046
$ 3251
12536
24173
46195
+ 620%
+ 617%
+ 544%
+ 544%
14
Year
Total Liability
PCF Funds
Unfunded Liability
1993
$250,404,000
$29,000,000
$221,404,000
1995
$423,500,000
$58,000,000
$365,500,000
1997
$407,000,000
$70,000,000
$337,000,000
2000
$357,980,841
$84,880,890
$273,099,951
2003
$606,711,190
$172,413,989
$434,297,201
2006
$806,694,000
$364,752,401
$441,941,599
2007
$915,056,000
$431,217,706
$483,838,294
2008
$912,948,479
$494,585,500
$418,089,979
Medical Liability Rate Comparison
*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
16
State
2006 Rate
2007 Rate
% Change
Alabama
Internal Medicine
General Surgery
OB/Gyn
7484
30,515
41,737
7484
30,515
41,737
0%
0%
0%
Internal Medicine
General Surgery
OB/Gyn
6,936
20,808
31,559
6,936
20,808
31,559
0%
0%
0%
Internal Medicine
General Surgery
OB/Gyn
44,807
173,264
194,959
41,946
160,278
182,183
-6%
-7%
-7%
Internal Medicine
General Surgery
OB/Gyn
15,112
51,587
74,764
15,112
51,584
74,827
0%
0%
0%
21,010
62,820
94,319
19,004
62,118
84,233
-10%
-1%
-11%
Arkansas*
Florida*
Georgia*
Louisiana**
Internal Medicine
General Surgery
OB/Gyn
State
2006 Rate
2007 Rate
% Change
Mississippi*
12,459
55,845
78,166
12,065
53,148
74,457
-3%
-5%
-5%
12,809
45,442
58,179
12,809
45,442
58,179
0%
0%
0%
Internal Medicine
General Surgery
OB/Gyn
10,074
39,762
56,772
9,868
38,781
55,363
-2%
-2%
-2%
Internal Medicine
General Surgery
OB/Gyn
17,789
57,792
74,825
17,596
56,526
74,099
-1%
-2%
-1%
Internal Medicine
General Surgery
OB/Gyn
Oklahoma*
Internal Medicine
General Surgery
OB/Gyn
Tennessee*
Texas*
Constitutional Cases:
Arrington and Taylor Third Circuit
• 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
19
Sibley vs. Board of Supervisors of LSU
• 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
20
Constitutional Cases
• Arrington, 970 So.2d 540, Back to the
14th JDC
• Taylor v. Clement, 970 So. 2d 545,
Back to the 14th JDC.
21
Constitutional Cases
• 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.
22
Constitutional Cases
• 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.
23
Constitutional Cases
• 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.
24
Oliver v. Magnolia Clinic (cont.)
• Third circuit will have to reverse the
judges factual finding that the statute
has a rational basis and substantially
furthers a substantial state purpose
25
Cases of Interest
• 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
26
Cases of Interest
• The OB/Gyn Collector
– Hundreds of Patients
– Invasion of Privacy
– Divorce and Bankruptcy
– Liability not Bound
27
Cases of Interest
• Hurricane cases 200 cases
– Nursing home cases want MMA Cover
– Hospital Cases want no MMA
– Consistent not Med Mal
28
Goals of Louisiana Hospitals
• 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.
29
Goals of Louisiana Hospitals
• 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.
30
Policy Considerations
• 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.
31
Medical Review Panels
• Part of the original compromise
• Plaintiff’s benefit?
• Streamline or eliminate
32
Medical Review Panels
•
•
•
•
Just review the medical record
No depositions
Evidence or not
Expert witness or not
33
Medical Review Panels
• Can waive now
• One side waive without concurrence and
loser pays
34
Legislative Activities
• 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.
35
Legislative Activities
• Plaintiff’s bar: Just raise the cap
• Provider’s: We pay enough. What are you
willing to do?
36
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
Legislative Activities
• Certificate of Merit Louisiana style
• Eliminate Samaha extensions and
require the expert opinion or affidavit
within 90 days
38
Legislative Activities
• 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
39
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.
40
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
41
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
42
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.
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)
44
A physician’s view
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
46
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
47
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)
48
• 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
49
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