Washington State Hospital Association 71st Annual Meeting - PowerPoint PPT Presentation

Washington state hospital association 71st annual meeting l.jpg
Download
1 / 60

Washington State Hospital Association 71st Annual Meeting. October 9-10, 2003 Bell Harbor Conference Center Seattle, WA. Concurrent Session: “The Medical Liability Quandary: Is There a Way Out?”. October 9, 2003 Matt Wall, J.D. Associate General Counsel Texas Hospital Association

I am the owner, or an agent authorized to act on behalf of the owner, of the copyrighted work described.

Download Presentation

Washington State Hospital Association 71st Annual Meeting

An Image/Link below is provided (as is) to download presentation

Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author.While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server.


- - - - - - - - - - - - - - - - - - - - - - - - - - E N D - - - - - - - - - - - - - - - - - - - - - - - - - -

Presentation Transcript


Washington state hospital association 71st annual meeting l.jpg

Washington State Hospital Association 71st Annual Meeting

October 9-10, 2003Bell Harbor Conference CenterSeattle, WA


Concurrent session the medical liability quandary is there a way out l.jpg

Concurrent Session: “The Medical Liability Quandary: Is There a Way Out?”

October 9, 2003

Matt Wall, J.D.

Associate General Counsel

Texas Hospital Association

P.O. Box 15587

Austin, Texas 78761

512/465-1538

mwall@tha.org


The answer is yes there is a way out of the medical liability quandary with l.jpg

The answer is “Yes, there is a way out of the medical liability quandary” – with…

  • the right coalition,

  • research,

  • the political will,

  • grassroots efforts,

  • … and luck.


Snapshot of the liability problem in texas coverage issues in early 2003 l.jpg

Snapshot of the liability problem in Texas - coverage issues in early 2003

  • From 2000-2003, the average Texas hospital premium more than doubled, to $870,000.

  • From 2002-2003, 93 percent of the hospitals in Texas increased their first layer of coverage, usually through an increase in self-insured retention – and 37 percent of those hospitals said they increased their first layer of coverage by more than $4 million in that one-year period.

    Source: Jan. 2003 THA Professional Liability Study


Snapshot of the liability problem in texas coverage issues in early 20035 l.jpg

Snapshot of the liability problem in Texas - coverage issues in early 2003

  • From 2002-2003, almost 75 percent of the hospitals in Texas experienced a decrease in their second layer of coverage of 40 percent or more.

  • Despite the substantial decrease in the second levels of coverage, the premium for this lower amount of coverage was often higher.

    Source: Jan. 2003 THA Professional Liability Study


Snapshot of the liability problem in texas other professional liability issues l.jpg

Snapshot of the liability problem in Texas– other professional liability issues

  • Hospitals’ loss history review - longer time span or more intense review than in the past: 55+ %

  • Hospitals were unable to obtain the amount of commercial coverage they desired: 20+ %

  • Hospitals increased their total number of commercial policies in an attempt to obtain a similar level of total coverage: 50 %

    Source: Jan. 2003 THA Professional Liability Study


Snapshot of the liability problem in texas other professional liability issues7 l.jpg

Snapshot of the liability problem in Texas– other professional liability issues

  • Physicians on the medical staff asked if the hospital was willing to help subsidize the physician’s liability premiums: 65 %

  • Hospitals changed commercial carriers: 50+ %

    Source: Jan. 2003 THA Professional Liability Study


Negative impact of these issues on health care l.jpg

Negative impact of these issues on health care

Higher premiums

+

reduced access

to liability insurance

=

Jeopardized access

to health care


Negative impact of these issues on health care9 l.jpg

Negative impact of these issues on health care

More dollars for liability insurance

also means fewer resources to

expand or enhance services.

Numerous hospitals indicated

that they had restructured

or limited their plans for

expanding existing services or

adding new ones due to the

increase in liability premiums

that would result.

Source: Jan. 2003 THA Professional Liability Study


Forming a medical liability reform coalition l.jpg

Forming a medical liability reform coalition

  • Coalition building is critical to achieving success on liability reform. Reasons:

    • Builds trust

    • Helps reduce conflict

    • Allows the coalition to speak with one voice


Forming a medical liability reform coalition11 l.jpg

Forming a medical liability reform coalition

  • The Texas Alliance for Patient Access (TAPA):

    • formed in January 2002

      • Name registered

      • Executive director hired

      • Dues established and assessed

      • Website established


Forming a medical liability reform coalition12 l.jpg

Forming a medical liability reform coalition

  • TAPA:

    • was formed as a consortium of representatives of hospitals, physicians, liability insurance carriers, clinics, health insurers and long-term care providers

    • to serve as a facilitator and promoter of the liability reform agenda in Texas.

  • Ensuring access to care became the alliance’s key message.


Forming a medical liability reform coalition13 l.jpg

Forming a medical liability reform coalition

  • TAPA was modeled after an alliance in California: Californians Allied for Patient Protection (CAPP).

  • CAPP “is a broad-based coalition of health care providers, business, labor and consumer organizations, and insurers created to preserve the Medical Injury Compensation Reform Act of 1975 (MICRA), California's landmark medical malpractice law.” (www.micra.org)


Forming a medical liability reform coalition14 l.jpg

Forming a medical liability reform coalition

  • Key TAPA committees established:

    • Legal and Claims Committee

      • Composed of health care lawyers, insurance representatives.

    • Communications Committee

      • Composed of association communications directors, and PR consultant.


Tapa legal and claims committee l.jpg

TAPA Legal and Claims Committee

  • Top legal and insurance experts were included -

    • Knowledge of relevant state statutory, case-law and regulatory issues was a prerequisite.

  • They debated and formulated the specific elements of the proposed legislation

    • monthly meetings

    • in Austin.


Tapa legal and claims committee16 l.jpg

TAPA Legal and Claims Committee

  • Their recommendations were presented to the entire TAPA board for approval in the fall of 2002.

  • This committee also vetted specific legislative proposals and counterproposals during the 2003 legislative session.


Tapa legal and claims committee17 l.jpg

TAPA Legal and Claims Committee

  • Key decision for the committee:

    • whether to pursue just medical liability reform legislation, or also a constitutional amendment to limit noneconomic damages.


Tapa legal and claims committee18 l.jpg

TAPA Legal and Claims Committee

  • Specifically, the committee considered whether to pursue a joint resolution that would authorize a constitutional election by the voters.

  • As envisioned by the committee, this election would address one question: whether the legislature could set limits on noneconomic damages in medical liability cases.


Tapa legal and claims committee19 l.jpg

TAPA Legal and Claims Committee

  • The committee decided to pursue the drafting of a joint resolution. The rationale:

    • A constitutional amendment, if passed by the voters, would provide immediacy and certainty regarding a noneconomic damages cap.


Tapa legal and claims committee20 l.jpg

TAPA Legal and Claims Committee

  • This meant that the liability reform initiative would be a two-pronged fight:

    • Legislature

    • Voters


Tapa legal and claims committee21 l.jpg

TAPA Legal and Claims Committee

  • The resulting legislation was HJR 3.

  • HJR 3 ultimately passed on May 20, 2003 by a vote of 102/43 in the House, and 22/9 in the Senate. And it includes authorization for the legislature to set caps in other liability cases, too.

  • HJR 3 was designated as Proposition 12 for the constitutional election.


Tapa legal and claims committee22 l.jpg

TAPA Legal and Claims Committee

RESULTS OF 9/13/03 CONSTITUTIONAL ELECTION ON PROPOSITION 12:

  • Total Votes Cast:          1,416,615

  • In Favor:                       750,810         51.12%

  • Against:                         717,805        48.88%

  • Margin of Victory:        33,005


Tapa legal and claims committee23 l.jpg

TAPA Legal and Claims Committee

  • House Bill 3 was originally filed as the medical liability reform legislation in February.

  • Subsequently, the House leadership expanded HB 3 to address a number of nonmedical liability reforms (such as class actions, products liability and venue). It was renumbered as HB 4.


Tapa legal and claims committee24 l.jpg

TAPA Legal and Claims Committee

HB 4:

  • entailed 60+ hours of public hearings, several days of legislative debate, and the filing of 300+ amendments.

  • finally passed on June 2, 2003 - the last day of the regular session. The vote was 110/34 in the House, and 28/3 in the Senate.


Tapa communications committee l.jpg

TAPA Communications Committee

  • This committee developed a media plan to manage the liability reform issue:

    • Consistency and consensus were key factors in message development.

    • Provided one-day media training for TAPA spokespersons and representatives from hospitals, medicine, insurance and nursing.


Tapa communications committee26 l.jpg

TAPA Communications Committee

  • Media plan, (cont’d.):

    • Developed collateral materials for coalition’s use

    • Coordinated grassroots involvement

      • Letter-writing campaigns during the legislative session

      • Local media coordination/coverage/story development


Tapa communications committee27 l.jpg

TAPA Communications Committee

  • Media plan (cont’d.):

  • Developed a mechanism for media management

    • Initiated rapid responses to inquiries/other stories

    • Arranged news conferences


Other research l.jpg

Other research

The Texas Hospital Association established its own tort reform technical advisory group to review legal concerns and recommend legislative options.


Other research29 l.jpg

Other research

  • The THA TAG:

    • was composed of in-house counsel and risk managers from THA-member hospitals/systems.

    • met three times over a one-year period.

    • reviewed law review articles, studies, other states’ laws.


Other research30 l.jpg

Other research

  • The THA TAG (cont’d.):

    • provided testimony and expertise during the interim committee hearings of the legislature in 2002.

    • developed recommendations – which in turn helped establish the parameters for THA in its negotiations on the TAPA board.


Other research31 l.jpg

Other research

Point: You should consider establishing a TAG

to tackle the tough legal/technical issues,

and to help focus your effort.


Other research32 l.jpg

Other research

  • California’s MICRA was a template for the Texas law. MICRA has four fundamental components:

    • $250,000 cap on noneconomic damages (California Civil Code § 3333.2)

    • Periodic payments(California Code of Civil Procedure § 667.7)


Other research33 l.jpg

Other research

  • MICRA key components (cont’d.):

    • Contingency fee limits (California Business and Professions Code § 6146)

    • Evidence of collateral source payments to offset awards (California Civil Code § 3333.1)


Other research34 l.jpg

Other research

TAPA concluded that a cap

on noneconomic damages

was the key ingredient

to effective liability reform legislation.


Other research35 l.jpg

Other research

  • Helpful resources supporting the utility of caps on noneconomic damages:

    • The Impact of Legal Reforms on Medical Malpractice Costs(September 1993), Office of Technology Assessment, archived online at:

      http://www.wws.princeton.edu/~ota/ns20/alpha_f.html


Other research36 l.jpg

Other research

  • Helpful resources (cont’d.):

    • California’s MICRA Reforms: How Would a Higher Cap on Non-Economic Damages Affect the Cost of and Access to Health Care? Prepared by LECG, Inc. and available at:

      www.micra.org (under “Publications”)  


Other research37 l.jpg

Other research

  • Helpful resources (cont’d.):

    • Confronting the New Health Care Crisis: Improving Health Care Quality and Lowering Costs by Fixing Our Medical Liability System, U.S. Dep’t. of Health and Human Services (July 24, 2002), available at:

      http://aspe.hhs.gov/daltcp/reports/litrefm.htm


Other research38 l.jpg

Other research

  • Helpful resources (cont’d.):

    • Medical Malpractice Tort Reform: Lessons from the States, American Academy of Actuaries (Fall 1996), available at:

      http://www.actuary.org/(under “Publications,” click on “Issue Briefs,” then look under “Archives”)


Other research39 l.jpg

Other research

  • There are a number of other useful and important potential tools to help predict a state’s need for medical malpractice reform.


Other research40 l.jpg

Other research

Use state insurance

department statistics

and data calls on

medical and

professional

liability insurance to

help establish your

case.


Other research41 l.jpg

Other research

  • Other useful tools (cont’d.):

    • Hire an expert to conduct an association-sponsored actuarial study on claims frequency and severity


Other research42 l.jpg

Other research

  • Other useful tools (cont’d.):

    • Hire an expert, or use in-house expertise, to conduct an association-sponsored study on liability premiums


Political will l.jpg

Political will

TAPA hired a consultant to

conduct a Texas poll to

assess public knowledge and

perceptions of health care

liability. Eight focus groups

were conducted over three

months in key cities in Texas.


Political will44 l.jpg

Political will

  • The results of the poll were:

    • 62% believed the state’s health care system is broken, based on cost and potential loss of access to care.


Political will45 l.jpg

Political will

  • Polling results (cont’d.):

    • The public believed that the rising cost of malpractice insurance and high jury awards are contributing factors to increased costs. Many believed that greedy lawyers and frivolous lawsuits are running up the costs of the health care system.

    • The public also blamed insurance companies and managed care plans.


Political will46 l.jpg

Political will

  • Polling results (cont’d.):

    • 81% would support limits on attorney contingency fees.

    • 71% would support $250,000 cap on non-economic damages.

    • 78% would support $1 million cap on non-economic damages.


Political will47 l.jpg

Political will

  • Polling results (cont’d.):

    • 76% would support additional protection for emergency room physicians.

    • 77% would support efforts to make expert witnesses licensed.


Political will48 l.jpg

Political will

  • Point: Research and polling data are key factors:

    • in helping the legislature establish a legal and historical record of the reasons for reform,

    • in helping individual legislators, if necessary, justify their vote to their party, and

    • in helping legislators with their constituents back home.


Yes on 12 promotional l.jpg

“Yes on 12” Promotional


Yes on 12 promotional50 l.jpg

“Yes on 12” Promotional


Save texas courts promotional l.jpg

“Save Texas Courts” Promotional


Save texas courts promotional52 l.jpg

“Save Texas Courts” Promotional


Political will53 l.jpg

Political will

  • It’s also important to identify and utilize legislative “champions.”


Political will54 l.jpg

Political will

  • These are legislators who have the knowledge, intellect and determination, as well as the respect of their peers, to shepherd the legislation through the process.

  • A thick skin helps, too.


Grassroots activities l.jpg

Grassroots activities

  • Educate your members on the issues so they can “tell their story” to the media, to local groups, and to their legislators.


Grassroots activities56 l.jpg

Grassroots activities

  • Remember that liability reform issues, while complex, need to be distilled to their simplest terms, and they need to have human appeal. Simplify, simplify. Leave the complexities to the lawyers.


Grassroots activities57 l.jpg

Grassroots activities

  • Utilize your written/electronic communications networks to alert your members when quick action is needed, e.g., communicating with legislators in the days and hours leading up to a vote.


Grassroots activities58 l.jpg

Grassroots activities

  • Identify and work the swing votes

    • Use coalition members

    • Use outside lobbyists


Good luck l.jpg

Good luck!


  • Login