Embed Size (px)
Citation preview
INDIANA MEDICAL MALPRACTICE:How it Works &
How it is Changing
Wade D. FulfordDeputy General Counsel
Indiana Department of Insurance
Matthew W. ConnerBose McKinney & Evans, LLC
Indianapolis, IN
IDOI Medical Malpractice Department TeamNancy Wilkins, Manager, 317-232-2401,
[email protected] Bass, Administrative Assistant, 317-
232-2402, [email protected] Regina Riley, Clerical Staff: Medical Review
Panels, 317-232-5430, [email protected] Harris, Clerical Staff: Proposed
Complaints, 317-232-5253, [email protected]
Certificates of Insurance Prior to electronic filing, we received an
average of 36,500 certificates per yearAfter electronic filing, in 2014, more than
47,000 certificates were received (processed) 99.5% of the time the same day. The majority of these have processed without agency intervention due to technical system issues.
Proposed New Complaints Received
2011
2012
2013
2014
0 200 400 600 800 1000 1200
Proposed Complaints Received; 796
Proposed Complaints Received; 946
Proposed Complaints Received; 1025
Proposed Complaints Received; 1122
Proposed Complaints Received
Increase in Proposed ComplaintsFrom 2011 through the current date, there
has been an exponential increase in the number of proposed complaints received by the Department.
These have increased from 796 in 2011 to 1,122 in 2014. Comparing the current year shows that there has also been an increase of 140 complaints from the same time period in 2014.
IDOI MedMal Statistics – 2014914 Medical Malpractice Claims
Made by 1241 PlaintiffsAgainst 5564 Health Care Providers
Settlements by Qualified Healthcare Providers in Underlying Malpractice Claims1599 Total
Other Duties for MedMal DivisionIn addition to the above items, the Medical
Malpractice Division also processes numerous other documents, including Expungements, Reserve and Settlement Notices, Claim Withdrawals, and Medical Review Panels (panel chair, members and opinions).
Medical Malpractice ActInsurance Coverage
Cap on DamagesFrom 1975 - 1990 - $500,000; HCP Portion
$100,000From 1990 – 1999 - $750,000; HCP Portion
$100,000From 1999 – Present - $1,250,000; HCP
Portion $250,000
Medical Malpractice Act Process
Medical Malpractice ActLegislative changes creating the Med Mal Act
became effective in 1975 I.C. §34-18-1-1The Act’s dominant aim was to preserve
health care services for Indiana communities, to protect the health of the citizens by preventing a reduction of health care services (Johnson v. St. Vincent, 404 N.E.2d 585 (Ind. 1980))
Creation of the Patient’s Compensation Fund
Legislatively-created dedicated fund that pays excess damages over health care provider’s portion (Underlying Coverage)
Funded SOLELY through payments (referred to as surcharges) by participating health care providers
Participation is VOLUNTARY, but those who don’t pay don’t get the other benefits of the act
In 2014, PCF: Collected $108,225,995 in surcharge Paid $137,884,070.61 in claims Had 31,703 participating health care providers, including 160 hospitals PCF reviews this information on an annual basis to set the surcharge for Hospitals
and Healthcare Providers for the next year PCF pays out four times a year (recent change; used to be twice): January 15, April 15,
July 15, and October 15 For 2015, payouts:
147 claims paid Average payment was $648,971.89 41 claims or 28% were paid at $975,000 or above Breakdown of claims: 49% WD of adult, 7% WD of child, 37% PI to adult, 7% PI to
child Breakdown of HCPs: 39% hospitals, 33% physicians, 5% nursing homes, 23% all
other
Selected Statutory ProvisionsIC 34-18-2-13 – “Health care"IC 34-18-2-14 – “Health care provider”IC 34-18-2-18 – “Malpractice”IC 24-18-2-22 – “Patient”IC 24-18-2-22 – “Representative”IC 24-18-2-28 – “Tort”
IC 34-18-2-13 – “Health care""Health care" means an act or treatment performed or furnished, or that should have been performed or furnished, by a health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement.
IC 24-18-2-22 – “Patient”"Patient" means an individual who receives or should have received health care from a health care provider, under a contract, express or implied, and includes a person having a claim of any kind, whether derivative or otherwise, as a result of alleged malpractice on the part of a health care provider. Derivative claims include the claim of a parent or parents, guardian, trustee, child, relative, attorney, or any other representative of the patient including claims for loss of services, loss of consortium, expenses, and other similar claims.
What is Medical Malpractice?The substance of the claim determines the
applicability of the ActThe location of the incident is not determinativeThe Act applies to conduct that:
Exists beyond the understanding of the lay personRelates to the promotion of the patient’s healthInvolves the exercise of professional skill,
judgment or expertiseThere must be a causal connection between the
conduct and the nature of the physician-patient relationship
The Provision of Health CareOb-Gyn Associates of Northern Indiana, P.C.
v. Ransbottomthe plaintiff was burned after undergoing laser
hair removal at an Ob-Gyn’s medical office. No health care provider was required to
participate in laser hair removalNo connection between operation of laser and
nature of physician-patient relationship
Unsafe Premises and EquipmentHarts v. Caylor-Nickel, Inc.
Patient falls when bed railing “gave way”Pluard v. Patient’s Compensation Fund
Wall light falls and hits PatientConduct causing injury did not involve
exercise of professional skill, judgment or expertise
Recent Unpublished OpinionsPowell v. Porter Hospital
Patient slips and falls in water in hallway outside of a shower area
The location of the incident is not determinativeThe patient was not receiving treatment at the time of the
incidentThere was no allegation of a breach in the standard of care
Vandyne v. IOM Health SystemsPatient spills hot coffee on lap in geriatric unit dining roomThe decision to serve hot coffee in an open container involved a
question of nursing judgment because of patient’s conditionDissenting opinion did not believe this decision involved
professional judgment particularly since patient did not exhibit symptoms
Sexual Assault, Misconduct, and Other Intentional ActsDoe by Roe v. Madison Center Hospital
A mental health counselor molested a minor who was an inpatient in the children’s psychiatric ward and caused her to contract venereal disease.
Sexual assault is not conduct designed to promote the patient’s health and does not call into question the exercise of professional skill, expertise or judgment
Conduct presented factual issues capable of resolution by a jury of lay people
Madison Center v. R.R.K. a patient brought suit after being kicked in the face by another
patient who was also confined in the psychiatric unit. Patient’s injury did not arise from a casual connection between
conduct and nature of physician-patient relationship Patient’s injury arose from mere presence on the premises and was
no different than any business invitee
Sexual Assault, Misconduct, and Other Intentional Acts (cont.)Fairbanks Hospital v. Harrold
The patient filed a negligent supervision claim against Fairbanks Hospital
Negligent supervision of counselor did not involve health care because counselor's unwanted sexual advances were not designed to promote the patient's health
Anonymous Hospital v. DoePatient's injury arose from nature of physician-
patient relationship because she was under the influence of psychotropic medications at time of sexual encounters with another patient
Defamation and Intentional Infliction of Emotional DistressPopovich v. Danielson
Patient assaulted by plastic surgeonTerry v. Community Health Network
Patient passed out at birthday party and ended up in hospital
Alleged defamatory comments are acts of health care if made as part of medical assessment and diagnosis
Claims Asserted by Third PartiesPreferred Professional Insurance Company v.
WestPatient not provided proper information about
pain medicine causes on the job injury to third party
Although conduct arguably involved act of health care, the injured person was not a patient of the provider
General Assembly did not intend to extend scope of Act to third parties who have no relationship to the person who received health care
Ongoing Challenges to the Indiana Patient’s Compensation Fund Dr. Weinberger claims (Multiple claims against HCP)
In 2013, 346 cases paid for Medical Malpractice of ENT surgeon totaling over 65 million.
Dr. Gandhi, Dr. Makam, Dr. Asfour of Cardiology Associates of Northwest Indiana (Multiple Claims against HCP’s in the same practice group)
Approximately 187 patient claims on file related to allegations of improper/substandard cardiovascular treatment.
South Bend Clinic cases (Multiple claims against HCP regarding purchase of tainted medication compounds manufactured by NECC. Product/General Liability vs. Medical Malpractice)
120 claims against Indiana healthcare providers that administered contaminated steroidal compounds purchased from New England Compounding Center in Massachusetts.
The question presented is whether the MMA applies to a healthcare providers procurement of a product that was negligently manufactured by another party.
Bobbitt v. St. Mary’s (Constitutional Challenge to MMA damage caps) Evansville medical malpractice case resulted in a 15 million dollar verdict by a
jury. The Plaintiffs are challenging the constitutionality of the damage cap of $1.25
million and determination that the healthcare provider was a qualified provider under the MMA.
Potential Areas of Reform for the MMARecent Legislation Proposals
2014 Legislative Reform Initiatives1. SB 55 Senator Steele (direct filing procedure)2. HB 1043 Senator Torr (MMA cap and panel
process)Summer Study (ITLA, Hospital Association,
Indiana State Medical Association and IDOI)1. Caps on Damages Increase2. Medical Review Panel Process
End result is unclear but it will be an active legislative session regarding the MMA.
