Tag Archives: ACA

MPLI Executive Insights: Paul Greve, Executive Vice President, Willis Towers Watson Health Care Practice

On the latest episode of Healthcare Matters, we interview Paul Greve, Executive Vice President at Willis Towers Watson Health Care Practice for our segment, MPLI Executive Insights. We sat down with Greve during the 2017 Professional Liability Underwriting Society (PLUS) Medical Professional Liability Symposium, where he moderated the panel, “Hot Topics: Regulatory and Related Changes in Healthcare.” We spoke with Greve on many topics, including the effect that changing or replacing the Affordable Care Act could have on hospitals and physician liability and the possibility of including federal tort reform in future healthcare legislation. Greve addressed how measures like caps on noneconomic damages, affidavits of merit and safe harbor laws could impact the medical liability industry.

Greve spoke with us as part of our new segment, MPLI Executive Insights, where we talk with top medical liability industry executives on current trends in medical liability, where the industry may be headed in the future and the impact of politics and reform efforts on the medical liability industry.

MPLI Executive Insights: Andre Stewart, Chief Underwriting Officer – NORCAL Mutual

Join us for the first episode of our new Healthcare Matters segment, MPLI Executive Insights, where we interview top medical liability executives on current and future trends and developments in the industry. Today’s segment features Andre Stewart, Chief Underwriting Officer for NORCAL Mutual, who joined us during the 2017 Professional Liability Underwriting Society (PLUS) Medical Professional Liability Symposium. Stewart discussed several topics with us, including the importance of underwriting profits; how ‘shock losses’ can disturb the market, and the implications of repealing the Affordable Care Act on the medical liability industry.

Founded in 1975 in San Francisco, NORCAL Mutual Insurance Company has expanded from its West Coast origins to offer medical malpractice insurance in 35 states, including newly-added Colorado and Minnesota. NORCAL has maintained a rating of “A” or higher with A.M. Best throughout its history.

The GOP Plan to Reduce Frivolous Medical Malpractice Lawsuits

Join us on the latest episode of Healthcare Matters as we speak with Representative Phil Roe (R-Tenn) and Representative Andy Barr (R-Ky) about the American Healthcare Reform Act of 2017 (HR 277), a bill they introduced to Congress in January. Their bill would repeal and replace the Affordable Care Act (ACA), President Obama’s signature healthcare law. Unlike the ACA, HR 277 includes provisions to help reform the medical liability system, including a “safe harbor” for physicians who follow clinical practice guidelines. The bill would also move certain types of medical liability cases from state courts to federal court.

Rep. Roe was a practicing OB-Gyn prior to being elected to Congress in 2009 from Tennessee’s 1st District. Rep. Andy Barr, elected in 2013 from Kentucky’s 6th District, is a former trial attorney. Both are members of the Republican Study Committee (RSC), where they worked with current Secretary of Health and Human Services Tom Price, who has also been a proponent of including medical liability reform in Republican efforts to replace the ACA.

Click below to view our full interview with Rep. Roe and Rep. Barr.


 

President-Elect Trump

Special Report: The Future of the Medical Professional Liability Industry and the PPACA under a Trump Administration

The Future of the Medical Professional Liability, Patient Protection & Affordable Care Act Under a Trump Administration

Having weathered two Supreme Court challenges and more than 60 repeal attempts by a GOP-controlled Congress, it was the 2016 election that ultimately handed the Republican Party the ammunition it needs to neuter the Patient Protection & Affordable Care Act of 2010.

With a President-elect who campaigned on a full repeal and replacement of the Affordable Care Act as well as Republicans in control of both houses of Congress, it’s safe to say that President Obama’s signature health law — if not fully repealed — will undergo significant changes.

Despite the unified Republican government, Democrats in the Senate are likely to filibuster any wholesale attempt at repealing the landmark legislation that brought 22 million Americans healthcare coverage for the first time, leaving Republicans the parliamentary procedure known as reconciliation to hamstring the law often pejoratively referred to as Obamacare. The reconciliation process is restricted to matters that relate to spending, require only a majority vote and would allow Republicans to repeal the individual mandate that all Americans purchase health insurance, take apart the Affordable Care Act’s expansion of Medicaid and rescind the premium tax credits for low- and middle-income individuals purchasing health insurance on the open market.

The Republican Congress moved a reconciliation bill that would have repealed those portions of the Affordable Care Act to President Obama’s desk where it was promptly vetoed in December of last year, and the rhetoric so far suggests they are likely to use that bill — or one very similar — to financially hobble the healthcare law early in the Trump presidency.

The replacement portion of “repeal and replace” will likely take much longer as Republicans try to coalesce around legislation that its members can support and doesn’t result in the politically untenable position of abruptly throwing the newly insured out of healthcare access. Add to that the fact that many of the Affordable Care Act’s regulations have woven themselves into the healthcare delivery system during the last six years, and any quick, complete replacement of the Affordable Care Act is unlikely.

How Will Medical Liability Be Affected?

President-elect Trump has been mute so far on what role medical liability tort reform might play in his vision for the American healthcare delivery system, but Speaker of the House Paul Ryan released a 37-page white paper in June of this year where he broadly outlined his goals for replacing the Affordable Care Act.

Ryan’s white paper makes several calls for federal-level medical liability tort reforms. It argues the United States’ current system for medical malpractice remedy has “imperiled patient access and imposed tremendous costs on our nation. The current system has forced doctors out of practicing in certain specialties; it has caused trauma centers to close; and it has forced pregnant women to drive hours to find an obstetrician. The current system also has imposed a tremendous burden in unnecessary costs on our national healthcare system and federal government. Estimates are that the failure to enact meaningful medical liability reform costs our nation’s healthcare system as much as $300 billion each year.”

In its plea for tort reform, Ryan’s white paper argues “comprehensive medical liability reform that includes caps on noneconomic damages will improve patients’ access to quality care while reducing the overall cost of healthcare in America. Our plan will include liability reform that includes caps on noneconomic damage awards.”

The white paper further promises to “work with the states to pursue a wide variety of options such as loser-pays, proportional liability, the collateral source rule, consideration of the statute of limitation, safe harbor provisions, health courts and independent pre-discovery medical review panels.”

If President-elect Trump were a typical Republican, one could assume he holds views similar to Ryan, but the mercurial populist and serial-filer-of-lawsuits Trump campaigned on sticking up for the “little guy” and never officially disclosed his views on tort reform.

“One of the big questions is where the Trump Administration will be on tort reform,” said Mike Stinson, vice president of governmental relations and public policy for PIAA, the insurance industry trade association that represents entities doing business in the medical professional liability arena. “We’re not 100-percent sure we have a pro-business President-elect who is also going to be pro-tort reform. We usually link those two ideas together, but he could go in directions that would normally seem contradictory.”

Add to that the Freedom Caucus — comprised of conservative, libertarian-leaning Republican members of the House — having thwarted their own party’s Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act, which would have imposed a nationwide cap on damages, from getting out of committee earlier this year on grounds that the federal government has no authority to overwrite state civil liability laws, and nationwide medical liability tort reform under a unified Republican government seems like even less of a slam dunk.

How Will Malpractice Litigation Be Affected?

While political partisans and healthcare pundits debated the constitutionality and/or practical effectiveness of the Affordable Care Act, the medical malpractice insurance industry was closely watching the U.S. court system as medical malpractice defense attorneys argued — both successfully and unsuccessfully — that provisions of the Affordable Care Act should impact a plaintiff’s ability to recover the cost of future medical expenses.

When a negative medical outcome occurs, the lion’s share of economic damages to a plaintiff is most often the costs pertaining to his or her future medical care. Depending on the age of the patient and the severity of the medical injury, the cost of future healthcare needs can easily stretch into the millions of dollars. Traditionally, it has been generally assumed that 100 percent of these medical expenses would be paid for out-of-pocket by the plaintiff. Life care plans have rarely, if ever, taken into consideration the benefits of the plaintiff’s health insurance that would abrogate many of the projected expenses. This is because — prior to the Affordable Care Act — healthcare insurance almost always carried preexisting condition exclusions as well as annual and lifetime expenditure limits.

Savvy medical liability defense attorneys recognized that the Affordable Care Act removed preexisting condition barriers and expenditure limits as well as required all Americans to obtain some basic level of healthcare insurance. If this is the case, they contended, why can’t the defense argue future medical expenses will never be fully paid by the plaintiff out-of-pocket, and as such, the health insurance they are required to carry should be considered as a collateral source of recovery, subrogating portions of the total cost of economic damages?

Rather than paying the total cost of the plaintiff’s life care plan, these defense attorneys argued, the defendant should only be required to pay for the premium costs of obtaining the plaintiff’s healthcare insurance as well as any associated co-pays and deductibles. This argument has had mixed results so far in the American court system.

In court decisions that barred consideration of the Affordable Care Act offset potential, the most common reasoning had been that the Affordable Care Act’s future is too unsettled. Judges opined that with the heated politics surrounding the Affordable Care Act, the legislation could be struck down in one of the many lawsuits challenging its constitutionality or repealed when the balance of power shifts in Washington, D.C. — especially when one political party has been campaigning almost exclusively on doing just that. This was the reasoning in a 2012 case in Alabama, a 2013 case in Illinois and a 2014 case in Pennsylvania, among others.

Conversely, courts in Arizona, California, Hawaii, Illinois, Michigan and Ohio have allowed the Affordable Care Act’s mitigating effect to be admitted into evidence. In the Hawaii case, the defendant was allowed to cross-examine the plaintiff’s life care planner on the setoff effect of the Affordable Care Act on future medical expenses. In the Michigan case, the court found that “insurance provided under the Affordable Care Act is reasonably likely to continue into the future and that its discussion before the jury is not precluded.” In the Ohio case, Jones v. MetroHealth Medical Center, the court reduced a $14.5 million future damage award to $2.9 million by offsetting amounts covered under the Affordable Care Act, but allowing recovery for premiums, out-of-pocket costs and other expenses.

“If the Affordable Care Act is repealed, you’re no longer going to be able to compel people to purchase health insurance and you’re going to lose the future damages argument,” said Paul Greve, JD, RPLU, executive vice president/senior consultant of the Willis Towers Watson Health Care Practice. “Everyone in our industry had been watching the case Jones v. MetroHealth Medical Center in Ohio. The lower courts agreed with our argument and it was on its way to the state Supreme Court where we hoped it would set precedent. If Hillary Clinton had been elected president and Ohio maintained a Republican Supreme Court, which it did, the chances were very high that Jones was going to be upheld at the highest level, and we would then have a case other courts around the country could look to. That’s probably not going to happen now. If the requirement to purchase insurance is repealed, the argument is probably dead.“

By Michael Matray, the Editor of the Medical Liability Monitor. He can be reached at editor@mlmonitor.com

The ACA and Economic Damages in Medmal Verdicts

The Affordable Care Act’s Potential to Subrogate Future Care Portion of Economic Damages in Medical Liability Verdicts

By Michael Matray
Editor of the Medical Liability Monitor

While political partisans and healthcare pundits have been arguing over the constitutionality and/or practical effectiveness of the Patient Protection & Affordable Care Act since it was enacted six years ago, the medical professional liability insurance industry has been closely watching the U.S. court system as medical malpractice defendants have both successfully and unsuccessfully argued that provisions of the Affordable Care Act should impact a plaintiff’s ability to recover the cost of future medical expenses.

When a negative medical outcome occurs, the lion’s share of economic damage to a plaintiff is most often the costs pertaining to his or her future medical care. Depending on the age of the patient and the severity of the medical injury, the cost of future healthcare needs can easily stretch into the millions of dollars. Traditionally, it has been generally assumed that 100 percent of these medical expenses would be paid for out-of-pocket by the plaintiff. Life care plans – usually developed by a medical doctor and an economist for the plaintiff – have rarely, if ever, taken into consideration the benefits of the plaintiff’s health insurance that would abrogate many of the projected expenses. This is because – prior to the Affordable Care Act – healthcare insurance almost always carried preexisting condition exclusions as well as annual and lifetime expenditure limits.

Savvy medical liability defense attorneys have recognized that the Affordable Care Act has removed preexisting condition barrier and expenditure limits as well as requiring all Americans to obtain some basic level of healthcare insurance. If this is the case, they contend, why can’t the defense argue that future medical expenses will never be fully paid by the plaintiff out-of-pocket, and as such, the healthcare insurance they are required to carry should be considered as a collateral source of recovery and subrogate portions of the total cost of economic damages?

Rather than paying the total cost of the plaintiff’s life care plan, these defense attorneys argue, the defendant should only be required to pay for the premium costs of obtaining the plaintiff healthcare insurance as well as any associated co-pays and deductibles. This argument has had mixed results so far in the American court system.

In court decisions that have barred consideration of the Affordable Care Act’s potential to offset the itemized cost of a life care plan, the most common reasoning has been that the Affordable Care Act’s future is too unsettled. Judges have opined that with the heated politics surrounding the Affordable Care Act, the healthcare reform legislation could be struck down in one of the many lawsuits challenging its constitutionality or repealed when the balance of power shifts in Washington, D.C. – especially when one political party has been campaigning almost exclusively on doing just that. This was the reasoning in a 2012 case in Alabama, a 2013 case in Illinois and a 2014 case in Pennsylvania, among others.

Courts in Arizona, California, Hawaii, Illinois and Michigan have allowed the subrogating effect of the Affordable Care Act to be admitted into evidence.

In one Ohio case, the court reduced an $8 million future damage award to $2.9 million by offsetting amounts covered under the Affordable Care Act, but allowing recovery for premiums, out-of-pocket costs and expenses for transportation, home care and housing. In a Hawaii case, the defendant was allowed to cross-examine the plaintiff’s life care planner on the setoff effect of the Affordable Care Act on future medical expenses. In a Michigan case, the court found that “insurance provided under the Affordable Care Act is reasonably likely to continue into the future and that its discussion before the jury is not precluded.”

It’s hard to get a unifying handle on all the cases where defendants have successfully admitted the Affordable Care Act as evidence when arguing true economic damages. This is because of variations in state law as to collateral source rules, but as the Affordable Care Act grows greater roots in the American healthcare delivery system and state legislatures advance collateral source rule reforms in light of the Affordable Care Act, it is almost certain that more and more courts will allow such evidence.

The Affordable Care Act’s potential effect on economic damage recovery in medical professional liability lawsuits is huge. With some courts already accepting the healthcare reform legislation’s provisions as a collateral source of recovery and others not, it is likely one such decision, someday soon, will make its way before the U.S. Supreme Court where the result would set precedent.