Tag Archives: Medical Liability Monitor

New York State

New York Gov. Cuomo Proposes Physicians Pay for State’s Excess Coverage

New York Gov. Andrew Cuomo unveiled his 2022 State Budget proposal last month, which included a restructuring of the state’s excess medical liability program for physicians.

Under Section 18 of the New York Medical Malpractice Reform Act, physicians who maintain primary insurance coverage limits of $1.3 million per claim and $3.9 million in annual aggregate with a New York State-admitted medical liability insurance company are eligible — at no cost — for an additional $1 million per claim and $3 million in annual aggregate coverage from the state’s excess medical liability insurance program. Access to the free program has been a competitive advantage that medical professional liability insurance companies operating in the state’s standard admitted market have had over risk retention groups and other alternative risk transfer products.

New York is facing a two-year, $15 billion budget deficit, and Gov. Cuomo’s proposed budget would save the state about $51 million annually by requiring physicians with access to the excess medical liability program to cover half of the coverage costs. The governor’s Fiscal Year 2022 Executive Budget Briefing Book cites a stabilized, strengthened medical malpractice insurance market since the excess fund’s creation and a 24% decrease in enrollment since 2015 as justifications for the restructuring.

“This [budget proposal] is both ill timed and shortsighted,” wrote Bonnie Litvack, MD, president of the Medical Society of the State of New York (MSSNY), in a January 21 communication with members posted on the society’s website. “Physician practices in the pandemic have been struggling to keep the doors open.  If imposed, this will be the final straw for many practices and additional patients will lose access to care at a time when they and their communities need their physicians most.

“The excess program exists in the first place due to New York’s dysfunctional medical malpractice adjudication system (the worst in the country) and is akin to treating cancer with pain medications only. It is time to use tried and true remedies, like caps on pain and suffering [damages], expert witness reform and certificate of merit reform.”

In related news, Gov. Cuomo recently pledged to modernize the Department of Health’s Office of Professional Medical Conduct. During his 2021 State of the State speech, and included in his budget proposal, the governor promised to introduce legislative reforms intended to strengthen disciplinary actions for professional misconduct, improve enforcement and increase patient safety. One proposed reform is to add transparency by making misconduct investigations and information about non-disciplinary actions available to the public. New York law currently prohibits public confirmation of an investigation. The MSSNY has expressed its opposition to changing the law.

According to Litvack’s communication with members, the MSSNY is “perplexed by proposals to eliminate important due process protections for physicians against whom a complaint has been filed with the Office of Professional Medical Conduct. While we are committed to working to identify gaps in the NYS disciplinary, this budget proposal would give the Commissioner of Health the authority in their sole discretion to disclose to the public that a complaint has been filed against a particular physician, despite the fact that very few complaints ever actually result in a finding of professional misconduct.

“This information can remain on the internet forever, potentially ruining a physician’s professional reputation. The law already permits the commissioner to disclose information to the public when there is a public health threat. This provision would eliminate important due process protections.”

This article originally appeared in Medical Liability Monitor.

Doctor's reviewing claim data

Coverys Red Signal Report Details Evolving Risks of Primary Care

For primary care physicians, diagnostic errors are the leading type of malpractice claim, accounting for the highest proportion of indemnity paid, according to a just-released Primary Care Red Signal Report from Coverys. The analysis of primary care claims is the second in a planned series of claims-trend reporting intended to identify risks and illuminate safety vulnerabilities within the U.S. healthcare delivery system.

“In primary care, the big area of concern is missed and delayed diagnoses,” said Robert Hanscom, Coverys vice president and co-author of the report. “To a number of people, that may come as a surprise, but it’s because many of those claims involve a missed cancer diagnosis. A lot of times, doctors aren’t even aware that they’ve missed a diagnosis until way, way after the fact when they suddenly receive a claim letter or are named in a lawsuit. We want primary care physicians, who are constantly making diagnoses, to know that, in fact, this is an area of great vulnerability for them.”

There is no question that the risk profile for primary care physicians has expanded with the evolution of the specialty. The Primary Care Red Signal Report notes that the primary care physician role has become increasingly challenging, with yesterday’s family doctor now accountable for all aspects of the patient care continuum, including referral management, management of multi-morbidities and transfer to longterm care, all while keeping a sharp eye on utilization, appropriate level of care and patient quality metric outcomes.

Following are some highlights from the Primary Care Red Signal Report:

  • Among the top clinical conditions associated with a diagnostic failure in primary care, cancer cases are the most frequent, constituting 50 percent of diagnosis-related claims. The next highest categories are infections (19%), cardiac/vascular (16%), and myocardial infarction-related injuries (11%). The top missed cancer diagnoses are colorectal (20%), lung (19%), prostate (11%), bladder (9%) and breast (8%).
  • Treatment-related claims are the second-most common malpractice allegation against primary care physicians. These claims are frequently associated with cardiac treatments, pain management, wound care and blood administration. They also can be related to allegations of unnecessary treatments or scenarios involving the wrong patient. The top medical treatment allegations are management of treatment (accounting for more than 60 percent of the claims), failure to treat and delay in treatment.
  • Medication-related malpractice claims against primary care physicians often result in high-severity adverse outcomes. Approx-imately 45 percent of the medication-related claims, and more than half of the indemnity dollars paid, are directly related to allegations of inattentive monitoring and management of medication. Medication ordering is the second most frequent claim allegation, constituting approximately one-third of the medication-related claims and 38 percent of the indemnity dollars.
  • Transitions in care can be fraught with fragmented instructions and inconsistencies if not managed correctly. The top claim associated with transitions of care involves a delay or failure to obtain a specialty consult when clinically indicated (38%). Other fraught areas include failure to coordinate follow-up care, communication breakdowns among multiple physicians who may be providing care to a single patient, not working as a cohesive clinical team and a failure or delay in transferring to an alternative facility.
  • Primary care physicians need a strategy to address and monitor their risks. Coverys recommends improving diagnostic accuracy and treatment by regularly performing a complete age-appropriate history and physical exam on every patient that includes cancer screening; closing the referral loop by implementing a system to track, review, document and communicate all test results to patients; implementing a process for obtaining informed consent when high-risk medications are prescribed; and ensuring safe care transitions takes place by offering care coordination as well as follow-up appointments for patients with complex medical needs.

This article provided by Medical Liability Monitor.

MLM 2016 Annual Rate Survey – Will the Market Harden?

mlm-logoMedical Liability Monitor 2016 Annual Rate Survey Indicates Medical Malpractice Insurance Rates Remain Flat, Building Pressures Could Harden Market

Last month, Medical Liability Monitor published its 2016 Annual Rate Survey, which provides a year-to-year, continuing overview of changing premium rates for medical professional liability insurance. The Annual Rate Survey reports the manual rates for specific mature, claims-made specialties with $1 million coverage per claim and a $3 million annual aggregate – by far the most common limits. The special issue details three specialties – Internal Medicine, General Surgery and Obstetrics/Gynecology – to reflect the wide range of rates charged.

This year’s Annual Rate Survey depicts the cost of medical malpractice coverage against the backdrop of a medical professional liability insurance industry continuing an unprecedented run of consecutive profitable years. Much of the industry’s financial success is being driven by calendar-year underwriting profitability. This is significant because, during the approximately 40 years medical professional liability has been reported as a separate line of business, there have been only 13 years reflecting a calendar-year combined ratio under 100 percent. Ten of those 13 have been the last 10 years.

The consistent profitability and level of the calendar-year combined ratio is due, in no small part, to the favorable reserve development that began in 2005 after a five-year period of unfavorable development, occurring on the heels of significant broad-based increases in medical malpractice insurance rates and high-profile debates about the connection between access to healthcare, increases in medical professional liability loss costs/rates and tort reforms – with many states, consequently, implementing tort reforms beginning primarily in the 2003 to 2005 time period. These tort reforms – in concert with escalating costs associated with bringing a malpractice lawsuit and a shift in attitude by jury pools toward physician sympathy – have had a chilling effect on claim frequency.

As a result, the medical professional liability insurance industry has enjoyed a decade-long soft market where malpractice insurance rates have declined or remained flat from year to year. Results from the 2016 Annual Rate Survey indicate that the cost of medical malpractice insurance remains largely unchanged (flat) when compared to 2015 results. While the average rate decreased by 0.1 percent between 2015 and 2016, the vast majority (75 percent) of medical professional liability insurers participating in the 2016 Annual Rate Survey reported no rate change between 2015 and 2016 – slightly higher than the percentage with no manual change shown in 2015 (71 percent).

Of note is the distortion created by states with a Patient Compensation Fund (PCF). In 2016, and to some degree in 2015, the PCF surcharges have been impacted by unusual events. For example, the Mcare fund in Pennsylvania reflected decreased surcharges by about 50 percent in last year’s survey, but an approximate 40 percent increase in this year’s survey (related to adjustments called for in a settlement of litigation). Besides Pennsylvania, this year’s survey reports changes for the PCF surcharges in Indiana (increase), Louisiana (decrease) and Nebraska (increase). Eliminating the distortion created by the PCF surcharge changes causes the 75-percent no-change percentage mentioned above to increase to 82 percent, reduces the percentages reflecting increases (15 percent becomes 10 percent) and slightly reduces the percentage of decreases (9.4 percent becomes 8.6 percent).

In the 2015 Annual Rate Survey, medical malpractice insurers reported more rate increases than decreases for the fist time since 2006. This trend continues in the 2016 Survey – with 15 percent reporting increases and 9 percent reporting decreases. Double-digit rate increases are nonexistent this year, and only three states reported decreases of more than 5 percent: Arizona, Colorado and Louisiana.

For the twelfth-straight year, most increases were less than 10 percent. Roughly 1 percent of rate increases exceeded 10 percent, compared to a more than 5 percent of rate increases in excess of 10 percent a year ago. Similarly, 4 percent of last year’s rate increases exceeded 15 percent, whereas this year only one-half-of-1-percent of rate changes fell in this range.

Indications that the medical malpractice insurance industry’s fortune could be due to wane include a declining reserve development. During the last 10 years, favorable reserve development has benefited otherwise indicated industry calendar-year loss ratios by more than 27 points in some years. However, that benefit has declined to nearly 20 points in 2015, begging the question as to whether the medical professional liability insurance industry will continue the unprecedented, decade-long string of calendar-year underwriting profitability.

Another indication is the industry’s inflating “defense and cost-containment expense,” often referred to as allocate loss adjustment expense, or ALAE. In layman’s terms, the cost of attorneys, their staff, expert witnesses and other court-related services is getting more expensive. This increasing pressure has not prompted rate action yet because of all the other favorable claim trends, which are having a significant effect, but the increased ALAE costs should not be ignored.

The Medical Liability Monitor 2016 Annual Rate Survey indicates that the medical malpractice marketplace will remain stable in the near term, but over the long term, the industry’s slowly declining underwriting results and increasing ALAE pressures could potentially start pushing rates upward.

Michael Matray is the Editor of the Medical Liability Monitor, he can be reached here.