INDIANA MEDICAL MALPRACTICE:

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

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

IDOI Medical Malpractice Department Team

Nancy Wilkins, Manager, 317-232-2401,

nwilkins@idoi.in.gov

Leondra Bass, Administrative Assistant, 317-232-2402,

lbass@idoi.in.gov

Regina Riley, Clerical Staff: Medical Review Panels, 317-232-5430,

rriley@idoi.in.gov

LaTasha Harris, Clerical Staff: Proposed Complaints, 317-232-5253,

lharris1@idoi.in.gov

Certificates of Insurance

Prior to electronic filing

, we received an average of

36,500 certificates

per

year

After 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

Increase in Proposed Complaints

From 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 – 2014

914 Medical Malpractice Claims

Made by 1241 Plaintiffs

Against 5564 Health Care Providers

Settlements by Qualified Healthcare Providers in Underlying Malpractice Claims

1599 Total

Other Duties for MedMal Division

In 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 Damages

From 1975 - 1990 - $500,000; HCP Portion $100,000

From 1990 – 1999 - $750,000; HCP Portion $100,000

From 1999 – Present -

$1,250,000

; HCP Portion

$250,000

Medical Malpractice Act Process

Medical Malpractice Act

Legislative changes creating the Med Mal Act became effective in 1975 I.C. §34-18-1-1

The 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 Provisions

IC 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 Act

The location of the incident is not determinative

The Act applies to conduct that:

Exists beyond the understanding of the lay person

Relates to the promotion of the patient’s health

Involves the exercise of professional skill, judgment or expertise

There must be a causal connection between the conduct and the nature of the physician-patient relationship

The Provision of Health Care

Ob-Gyn Associates of Northern Indiana, P.C. v. Ransbottom

the 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 removal

No connection between operation of laser and nature of physician-patient relationship

Unsafe Premises and Equipment

Harts v. Caylor-Nickel, Inc

.

Patient falls when bed railing “gave way”

Pluard v. Patient’s Compensation Fund

Wall light falls and hits Patient

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

Recent Unpublished Opinions

Powell

v. Porter

Hospital

Patient slips and falls in water in hallway outside of a shower area

The location of the incident is not determinative

The patient was not receiving treatment at the time of the incident

There was no allegation of a breach in the standard of care

Vandyne v. IOM Health

Systems

Patient spills hot coffee on lap in geriatric unit dining room

The decision to serve hot coffee in an open container involved a question of nursing judgment because of patient’s condition

Dissenting opinion did not believe this decision involved professional judgment particularly since patient did not exhibit symptoms

Sexual Assault, Misconduct, and Other Intentional Acts

Doe

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. Doe

Patient'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 Distress

Popovich v.

Danielson

Patient assaulted by plastic surgeon

Terry 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 Parties

Preferred Professional Insurance Company v.

West

Patient 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 MMA

Recent Legislation Proposals

2014 Legislative Reform Initiatives

SB 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 Increase

Medical Review Panel Process

End result is unclear but it will be an active legislative session regarding the MMA.