December 2019 Newsletter

Personal injury attorneys target definition of a patient

With courts increasingly reviewing physician liability for patients they have never treated, the answer to what defines a patient could shape the future of access to care.

The issue stems from a recent case in which a Minnesota physician was held liable for harm to a patient he had never examined, reviewed her records or spoke to directly. Under review was whether or not the physician still had a “legal duty of care” following a conversation with a Nurse Practitioner, in which he recommended that the patient not be admitted to the hospital-based on a series of symptoms.

The AMA’s Litigation Center, in an amicus brief, argued that the duty of care was premised on a patient-physician relationship, which was not present in this case.

While lower courts agreed, highlighting the importance of informal consultations among health care professionals, the Minnesota State Supreme Court overruled these verdicts.

A moot court review of the case at the 2019 AMA Interim Meeting saw audience members raise concerns about a number of issues arising from the decision, including “the chilling effect of the decision, decision-making authority of NPs and physician assistants, legal ethics and medical ethics, telemedicine and the overall importance of good communication.”

For more information on how personal injury attorneys are pursuing liability lawsuits regardless of patient-physician relationships, click here.

State summary: A quarterly legislative update

Working with key members and stakeholders, the Health Coalition on Liability and Access outlined a summary of developments over the course of the year that affected state liability climates.

In states across the U.S., legislative solutions to a variety of medical liability issues were offered, and in other cases, reasonable limits on non-economic damages required protection.

Maryland and Oregon patients saw the successful defeat of legislation in both states to eliminate or raise caps on non-economic damages.

Certificate of merit laws were re-evaluated for effectiveness in Kentucky and West Virginia. Kentucky passed strong certificate of merit laws to reduce the number of meritless lawsuits, and
West Virginia passed similar legislation that also included expert witness guidelines.

Specifically, West Virginia’s law requires a qualified expert to review the case before filing and submit a certificate of merit (executed under oath) stating how the applicable standard of care had been breached and how the breach resulted in the injury or death.

To read the full state legislative update, issued this month and expected quarterly in 2020, Click here.

Consent-to-settle clauses upheld by highest court in Massachusetts

The Supreme Judicial Court of Massachusetts this month issued a unanimous ruling (Rawan v. Continental Casualty Company) affirming the use of consent-to-settle clauses in professional liability insurance. The ruling rejected claims by the plaintiffs that such clauses violated state public policy.

In reaching its decision, the Court noted that while state law requires insurers to “effectuate prompt, fair and equitable settlements of claims in which the liability has become reasonably clear,” consent-to-settle clauses existed when the law was enacted. Given that the legislature made no attempts to nullify the clauses at the time, the legislative history clearly indicates that the legislature did not consider them to be problematic. The ruling also noted that consent-to-settle clauses “serve valuable purposes,” including encouraging the voluntary purchase of insurance coverage and protecting the insureds “reputation and good will.”

In concluding its opinion, the Court said that, “An insurer still owes a duty to conduct a reasonable investigation and engage in good faith settlement attempts” but that an insured’s “stubborn refusal to settle” could not be blamed on the insurer.

The Medical Professional Liability Association, a HCLA member, filed an amicus brief in the case defending the use of consent-to-settle clauses.
To read the ruling in full, Click here.

Paid claims increasing for hospitals

The past 20 years have given rise to an upward trend in hospital medical liability claims, according to a new report.

The 2019 report from Aon and Beazley Group highlighted that not only have the average paid claims increased, so has the frequency of severe claims in excess of $5 million.

The claims data analyzed in the report shows the value of an average paid claim for hospitals increased by 50%, from $400,000 to $600,000 between 2009 and 2018.

Additionally, the proportion of claims exceeding $5 million has increased steadily over the past two decades. Between 2000 and 2002, the prevalence of such claims rose by 0.5%. Between 2015-2018, that had increased to 1.9%.

“Awards of this size drive hospitals to increase their self-insurance, can cause premiums to rise and industry capacity to decrease, so there is certainly a shared interest in seeing these rising costs stabilize,” said Valentina Minetti, U.S. hospitals focus group leader at Beazley.

The report is based on claims data that covers about half of all hospital beds in the U.S.

Click here to read the report in full, and here for an analysis of its findings.

Happy and healthy holiday wishes

As another year of engagement in support of medical liability reform comes to a close, Protect Patients Now thanks our grassroots network for the active role they have played in keeping this issue at the forefront of discussions on the future of our health care system.

While political tides continue to affect state and federal liability reform efforts, our grassroots network played an important role in getting comprehensive legislation re-introduced in the U.S. House in 2019.

Liability laws, particularly at the state level, have been closely followed this year in addition to a renewed focus on the impact of health care technologies on liability risks. In the New Year, the HCLA will be sharing more insight into this facet of medical liability with its supporters.

Protect Patients Now looks forward to being a continued source of information and engagement in 2019 and wishes you and your family peace, prosperity, and good health in the New Year.