Current Trends in Medical Malpractice

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Current Trends in Medical Malpractice

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Current Trends in Medical MalpracticePresentation to the Professional Liability Defense FederationSeptember 29, 2016Denver, CO

Paul Ruiz – Claims Executive

Gen Re, San Francisco


The material contained in this presentation has been prepared solely for informational purposes by Gen Re. The material is based on sources believed to be reliable and/or from proprietary data developed by Gen Re, but we do not represent as to its accuracy or its completeness. The content of this presentation is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Proprietary Notice

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Welcome to Denver

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Industry undercurrents driving changeDeveloping the next generation of trial attorney talentNursing claim developmentsDental claims developmentsImpact of the Affordable Care ActAdditional miscellaneous items if timeFrequency/Severity, Telemedicine, Cyber, Electronic Health Records, National Counsel.

Welcome to Trends in Medical Malpractice

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The MarketTrend of physicians becoming employees of hospitals and healthcare systems.Continuing acquisition of physician practices by healthcare systems.DemandAging Baby BoomersAffordable Care Act: 20M newly covered patientsSupplyIncreased need for primary care and physician extendersIncreased need for MPL (but fewer independent physicians requiring MPL)

Industry Undercurrents in Medical Malpractice

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Declining market share for carriers leading to more mergers and acquisitionsIncreased hospital insurance purchasing leverageDownward pressure on rates, decreased profitability Effects of industry consolidationExpense tighteningImpact to defense firmsWhat hasn’t changed…the need for quality claims and risk management

Impact to MPL

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What it was…Several associates providing assistance. The partner is the trial attorneyHigh defense costsAssociates occasionally authorized to try the caseWhat it is…Frequency down, less cases for associates to gain experience Partners will keep the big cases, smaller cases usually get settledAnd yet…Importance of talented and capable trial attorneys.

Developing Defense Attorneys

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Identifying those associates with trial capabilitiesAllowing second chairFlexible billable hoursHaving an associate handle some of the witnessesQualities of a capable defense attorney (from an insurance point of view)New claims talent – where are they coming from?

Developing the Bench

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On the rise$90M over the past 5 yearsForeign trained – more frequency, less severity85% of nurses with 16+ years of experience had claimsLargest indemnity payments were with those in the 3-5 year rangeCauses? (more responsibilities and demands = more claims, deep pockets)What can be done?Risk management strategies, training (5 “Rs”), documentation.

Nursing Claims Developments

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Old v New ParadigmProcedures at the upper limits of training.Why?Patients, Dentists, the Economy, Plaintiff Attorneys?Impact on dental carriers? PremiumsDefense CostsWhat to do?Importance of Risk ManagementClaim handling – settlement v trial

Dental Claim Developments – Increased Severity

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Is the ACA going anywhere?Use of the ACA to mitigate future medical costs Example of future medical costsWhat are carriers and defense attorneys doing?What does the ACA not cover?Is the ACA a collateral source?How jurors may view the ACA Challenges to defense counsel

Impact of the Affordable Care Act?

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Less frequency. Causes. Is it here to stay? More severity. Causes. Selectivity of cases, creative damage arguments (early and aggressive, negative discount rate, driving a wedge between insurer and insured)TelemedicineCyberElectronic Medical RecordsEfficacy of using national counsel on select cases?

Additional Medical Malpractice Items

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Significant market shifts with employed physicians, soft market, consolidation. Mutual benefit of developing younger attorneys. Hospitals and their carriers would do well to emphasize risk management and training of their nurses given the increased responsibilities. Carriers for dentists would also do well to focus on risk management efforts. Consider case studies for their insureds. “Lessons from losses.”ACA – Carriers and defense counsel should keep the provisions of the ACA in mind when addressing future medical costs.

Primary Takeaways

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Thank You


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