www.beneschlaw.com

Medical Malpractice and Basic Insurance

Oklahoma Association of Nurse AnesthetistsFall Meeting

River Spirit Casino and Resort

September 29-30, 2018

Mark J. Silberman, J.D.Partner

Benesch, Friedlander, Coplan & Aronoff LLP312.212.4952

MSilberman@BeneschLaw.com

Let’s Talk

MedicalMalpractice

What Are The BIGGEST Challenges That Accompany A Medical Malpractice

Claim?

Dealing with Lawyers.

Dealing with Insurance Companies.

Obviously, only the bad & greedy ones!

What Can A CRNA Be Most Grateful For If Ever Sued For Medical Malpractice?

A Good Insurance Company.

A Good Lawyer.

Obviously, only the honest & good ones!

What is Medical Malpractice?

When a health care providerprovides substandard care to a patient

that causes injury to the patient.

It is important to remember

A "bad" outcome≠

legal liability.

But it is also important to remember

Defending a baseless claimcosts the same (sometimes more)than defending a legitimate claim.

The Breakdown of Liability

• Duty (Did the appropriate relationship exist?)• Breach of Duty (Was the standard of care met?)• Causation (Did the breach cause the injury?)• Damage (What are the results of the injury?)

Duty

Was there a legal obligation to provide care to this individual

(e.g., did a provider-patient relationship exist)?

BREACH OF DUTY

Did the care provided meet the appropriate standards?

WHAT IS THE APPROPRIATE STANDARD?

• Home/Local Community?• National Standard?• Specialist or Expert?

CAUSATION

Did the substandard care CAUSE the injury?

Just because the care was substandard does not mean it caused the injury being complained of.

DAMAGES

Duty + Breach + Causation = Liability

Liability Yields Damages

The remaining question is:$$or

$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$

Before We Begin, Let's Discuss

THE RELATIONSHIPWITH THE PATIENT

What Can I Do To Minimize My Risk?

• Provide quality care.• Work with quality people.• Perform routine evaluations of your process.

(Don't wait for an incident to assess yourself).• DO NOT SWEEP THINGS UNDER THE RUG!• Listen to your staff, colleagues, and patients.• Trust your lawyer.

Insurance Options

Claims Made

Versus

Occurrence

What It Used To Be

• Back in the day:– All medical malpractice insurance policies were "occurrence"

policies. – Policies were written for a one-year term and covered any claims

that arose from treatment during that one-year term.– This was true even if, at the time the claim was made, the insured

was no longer with that company.

Occurrence

• An occurrence policy provides coverage for alleged incidents or injuries that occurred during the policy year regardless of when the claim is reported to the carrier.

• Provides a separate coverage limit for each year the policy is in force.

• It does not matter if the policy is active when the claim is reported - only that the policy was active when the alleged incident occurred.

Why Did This Change?

• Insurance companies were not making enough money (That’s only kind of true).

• Damages awards began to increase and the premiums insurance companies had charged when the policies were issued did not cover the damages being awarded years later when the claims were being resolved.

What was the Result

"Claims-made" policies were born.

They allowed insurance companies additional opportunities to hedge their bets by adjusting their pricing later by having a "last

shot" at more insurance premiums.

(TAIL INSURANCE)

Claims-Made

• Offers coverage from a start date (often called a "retroactive date").

• Coverage continues so long as the insured keeps paying premiums and continues to renew the policy.

• If you switch insurance companies, you need the new company to pick up the original retroactive date (and keep paying premiums).

Coverage

• You will be covered for incidents arising on or after the policy retroactive date and which are reported during the term of the policy.

• If you stop paying premiums or your new company will not pick up the previous retroactive date, your coverage for previous acts ("prior act coverage") ceases.

Unless . . .

Your coverage is completed by acquiring a "tail.“

What Is A Tail?• A tail is extra insurance (at an extra cost) that permits you to

report claims for incidences that occurred during the time the policy was active (from the retroactive date to the policy expiration date).

Remember . . .

• The cost of the tail is a one-time fee. • Without a tail, any incident that occurred when the policy was

active, but was reported after the policy was terminated, will not be covered.

• Also, a tail will not cover incidents that occur after the policy is terminated.

Tails For The Individual

• With most policies, a free tail is available for death or disability without any waiting period; for retirement, usually after a waiting period of one to five years and sometimes after reaching a minimum retirement age.

• This is an important question to ask about your policies.

Tails For Facilities

• Free tails are usually not available to facilities.• The tails that are available are usually offered at a steep

premium and extend the time for filing claims for a limited period (usually 1 to 5 years).

Cost of Policies

Generally, "occurrence" policies cost more than "claims-made" policies:• Occurrence policies are priced at a level premium year to

year.• Claims-made policies start off at a low first-year premium and

increase each year (usually for 5 to 7 years) until they reach their "mature" level premium.

Interesting . . .

If you have a claims-made policy for several years and then buy the tail when the policy is terminated, the total

cost can be similar to the rate of a comparable occurrence policy.

(We differ on what we find interesting.)

Why?

The reason occurrence coverage tends to be more expensive is because what you are basically doing is

pre-paying for tail costs whether the tail gets used or not.

Claims-Made Policies

Costs

Which Should I Buy?

• It would seem almost intuitive that the occurrence policy is preferable if you don't consider the immediate price.

• At the end of the day:– Purchasing insurance is a business decision and it is

important to explore and understand what type of policy best fits your business needs.

Benefits To Consider

• One benefit of a claims-made policy is that changes to your current coverage or changes to the policy limits apply to past years as well.

• With a claims-made policy, you can increase your policy limits or add coverage as the need arises or as new coverage becomes available. It is more flexible and provides considerable cost savings during the early years which could be important when starting a practice.

Benefits To Consider (Cont'd.)

• The occurrence policy has the advantage of permanency. • You do not have to renew the policy to maintain coverage for

a year you were insured. • You have separate limits each year you were insured so past

claims will not erode the limits of future years of coverage.

Admitted v. Non-Admitted CompaniesAdmitted:

• Regulatory Oversight• State Guarantee Fund Coverage• Broadest Policy Coverage Forms• Unlimited Tail Coverage Available

Non-Admitted• Accepts non-standard applicants / more

flexible underwriting• Higher Premiums / Reduced Coverage

Concern re: Non-Admitted

No state guarantee fund coverage

No regulatory oversight

Coverage limitations and restrictions

Consent to Settle

“The Insurance Company will not settle any claim without your consent.”

v.“Insurer shall not settle any claim without the consent of the

insured. If, however, the insured refuses to consent to a settlement recommended by insurer and elects to contest the claim or continue legal proceedings, insurer’s liability for the

claim shall not exceed the amount for which the claim could have been settled, including claim expenses.”

Apology Laws

• State apology laws designed to balance the disconnect created between lawyers/ healthcare professionals and the rest of the world.

• Why was this necessary?– "Whatever you do – don't apologize – it will look like you did

something wrong!?!"

Apology Laws (Cont'd.)

• The concept is that an apology for what has happened will not be admissible in court as an admission of guilt.

• Why? – Most people want to know you are sorry.– Studies have shown apologies will substantially reduce the incidents

of malpractice lawsuits (or resolve them sooner).

Oklahoma’s Law

§63-1-1708.1H. Statements, conduct, etc. expressing apology, sympathy, etc. - Admissibility - Definitions.

A. In any medical liability action, any and all statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence which are made by a health care provider or an employee of a health care provider to the plaintiff, a relative of the plaintiff, or a representative of the plaintiff and which relate solely to discomfort, pain, suffering, injury, or death as the result of the unanticipated outcome of the medical care shall be inadmissible as evidence of an admission of liability or as evidence of an admission against interest.

Oklahoma (Cont'd.)

B. For purposes of this section, unless context otherwise requires, "relative" means a spouse, parent, grandparent, stepfather, child, grandchild, brother, sister, half-brother, half-sister or spouse's parents. The term includes said relationships that are created as a result of adoption. "Representative" means a legal guardian, attorney, person designated to make decisions on behalf of a patient under a durable power of attorney or health care proxy, or any person recognized in law or custom as an agent for the plaintiff.

Illinois Law

• The providing of, or payment for, medical, surgical, hospital, or rehabilitation services, facilities, or equipment by or on behalf of any person, or the offer to provide, or pay for, any one or more of the foregoing, shall not be construed as an admission of any liability by such person or persons.

Illinois (Cont'd.)

Any expression of grief, apology, or explanation provided by a health care provider, including, but not limited to, a statement that the health care provider is "sorry" for the outcome to a patient, the patient's family, or the patient's legal representative about an inadequate or unanticipated treatment or care outcome that is provided within 72 hours of when the provider knew or should have known of the potential cause of such outcome shall not be admissible as evidence…(emphasis added).

The best business practice will always be

ProvidingQualityCare.

Don’t put profits above care.

Don’t need me… But I’m here if you do!

Mark J. Silberman Partner Health Care Benesch, Friedlander, Coplan & Aronoff LLP 333 West Wacker Drive, Suite 1900 Chicago, IL 60606-2211 Ph: 312.212.4952 Cell: 773.318.4258 Fax: 877.357.4913 Email: MSilberman@beneschlaw.com www.beneschlaw.com

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Disclaimer (Lawyers Love Disclaimers)

This presentation and handouts are for general information and do not include a full legal analysis of the matters

presented. They should not be construed or relied upon as legal advice or legal opinion on any specific facts or

circumstances.

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