INDIANA MEDICAL MALPRACTICE: - PowerPoint Presentation

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INDIANA MEDICAL MALPRACTICE:How it Works &How it is Changing

Wade D. FulfordDeputy General CounselIndiana Department of Insurance Matthew W. ConnerBose McKinney & Evans, LLCIndianapolis, INSlide2

IDOI Medical Malpractice Department TeamNancy Wilkins, Manager, 317-232-2401, nwilkins@idoi.in.govLeondra Bass, Administrative Assistant, 317-232-2402, lbass@idoi.in.gov

Regina Riley, Clerical Staff: Medical Review Panels, 317-232-5430, rriley@idoi.in.govLaTasha Harris, Clerical Staff: Proposed Complaints, 317-232-5253, lharris1@idoi.in.gov Slide3

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.Slide4

Proposed New Complaints ReceivedSlide5

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. Slide6

IDOI MedMal Statistics – 2014914 Medical Malpractice ClaimsMade by 1241 PlaintiffsAgainst 5564 Health Care ProvidersSettlements by Qualified Healthcare Providers in Underlying Malpractice Claims1599 TotalSlide7

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).Slide8

Medical Malpractice ActInsurance CoverageSlide9

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 $250,000Slide10

Medical Malpractice Act ProcessSlide11

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))Slide12

Creation of the Patient’s Compensation FundLegislatively-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 providersParticipation 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 surchargePaid $137,884,070.61 in claims Had 31,703 participating health care providers, including 160 hospitalsPCF reviews this information on an annual basis to set the surcharge for Hospitals and Healthcare Providers for the next yearPCF pays out four times a year (recent change; used to be twice): January 15, April 15, July 15, and October 15For 2015, payouts:147 claims paidAverage payment was $648,971.8941 claims or 28% were paid at $975,000 or aboveBreakdown 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 otherSlide13

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”Slide14

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.Slide15

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.Slide16

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 person

Relates 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 relationshipSlide17

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 relationshipSlide18

Unsafe Premises and EquipmentHarts v. Caylor-Nickel, Inc.Patient falls when bed railing “gave way”Pluard v. Patient’s Compensation FundWall light falls and hits Patient

Conduct causing injury did not involve exercise of professional skill, judgment or expertiseSlide19

Recent Unpublished OpinionsPowell v. Porter HospitalPatient slips and falls in water in hallway outside of a shower areaThe location of the incident is not determinative

The patient was not receiving treatment at the time of the incidentThere was no allegation of a breach in the standard of careVandyne 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 symptomsSlide20

Sexual Assault, Misconduct, and Other Intentional ActsDoe by Roe v. Madison Center HospitalA 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 judgmentConduct presented factual issues capable of resolution by a jury of lay peopleMadison 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 relationshipPatient’s injury arose from mere presence on the premises and was no different than any business inviteeSlide21

Sexual Assault, Misconduct, and Other Intentional Acts (cont.)Fairbanks Hospital v. HarroldThe patient filed a negligent supervision claim against Fairbanks HospitalNegligent 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 patientSlide22

Defamation and Intentional Infliction of Emotional DistressPopovich v. DanielsonPatient assaulted by plastic surgeonTerry v. Community Health Network

Patient passed out at birthday party and ended up in hospitalAlleged defamatory comments are acts of health care if made as part of medical assessment and diagnosisSlide23

Claims Asserted by Third PartiesPreferred Professional Insurance Company v. WestPatient not provided proper information about pain medicine causes on the job injury to third partyAlthough 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 careSlide24

Ongoing Challenges to the Indiana Patient’s Compensation FundDr. 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.Slide25

Potential Areas of Reform for the MMARecent Legislation Proposals2014 Legislative Reform InitiativesSB 55 Senator Steele (direct filing procedure)

HB 1043 Senator Torr (MMA cap and panel process) Summer Study (ITLA, Hospital Association, Indiana State Medical Association and IDOI)Caps on Damages IncreaseMedical Review Panel ProcessEnd result is unclear but it will be an active legislative session regarding the MMA.