May 19, 2015 by matray

The following is an unabridged version of Medical Liability Monitor's review of the 2015 PLUS Medical PL Symposium. An abridged version of this article appears in the May issue of Medical Liability Monitor. With the U.S. healthcare delivery system negotiating its way through unprecedented reforms, the Professional Liability Underwriting Society (PLUS) focused its 2015 Medical PL Symposium on innovation and its implications for medical liability. This year’s symposium took place April 28-29 at the Marriott Marquis in downtown Atlanta. The two-day event’s focus was highlighted by the keynote address given by “innovation activist” John Kao. A graduate of Yale College, Yale Medical School and Harvard Business School as well as a celebrated author, Tony-nominated producer/musician who apprenticed under composer/arranger/guitarist/bandleader/iconoclast Frank Zappa, serial entrepreneur and consultant, Kao’s keynote shared his provoking perspectives on the “how” of innovation—where it is defined not only as a brainstorm-to-blueprint, but by results based on discipline and practice. In keeping with the keynote’s theme, the PLUS Medical PL Symposium content drilled down on the many innovations being implemented in today’s healthcare environment and the resulting liability issues. The opening session, What Is the Impact of PPACA on MedPL Exposures, compared the most up-to-date available data with some of the past predictions made about how the Patient Protection & Affordable Care Act (PPACA) of 2010 was going to impact medical professional liability. While the session’s panelists agreed that the pace of change has been, at times, overwhelming, the prediction that an influx of newly insured patients would overwhelm the healthcare system and expand claims frequency has not proven true. Panelist Michael Reynolds, claims director and director of government relations for ProAssurance, pointed to how a state-level trend toward giving advanced mid-level clinicians (such as nurse practitioners and physician assistants) full-practice authority and the rise of retail medical clinics have blunted the impact of the nation’s physician shortage. During the session Technology in Healthcare: EHRs & PHI, panelists addressed the myriad of technological advances in healthcare as well as heightened exposures due to the increased collection of personal health information (PHI) and their impact on risk management and underwriting approaches being utilized. Panelist Brenda Osborne, executive vice president of the Healthcare Division at Lexington Insurance, referenced data from CRICO, the Harvard-affiliated risk management group, that indicated the greatest challenges in implementing and executing electronic health record (EHRs) in a hospital setting is the inability of different EHR models to communicate cross-platform, system errors that cause the EHR to crash and the inherent dangers when humans are tasked with entering data into EHRs. Fellow panelist Joshua Rozovsky, a technology consultant, emphasized that a data breach can be expensive, but the real danger is in an unknown hacking the system and altering patient records or shutting down the entire system for ransom. The session Batch Claims: What Are the “Three P’s”? addressed the potential for batch/multi-claimant situations in the context of medical professional liability claims. These claims are high-profile, big-dollar claims, such as the $190 million Johns Hopkins Health System had to pay for its OB/Gyn who secretly recorded pelvic exams of his patients, the cardiologist indicted for performing dozens of unnecessary heart stent placements or the Las Vegas physician who exposed hundreds of patients to Hepatitis C by reusing endoscopy equipment. Panelist Scott Crockett, an attorney, noted that batch claims became more prominent in medical liability five years ago, and that in the last 24 months, he had seen two medical malpractice batch claims that totaled more than $290 million. Now, he said, batch coverage is common in hospital professional liability policies, and when a plaintiff attorney gets a case, he or she almost always goes on a phishing expedition for similar cases in hopes of creating a batch claim. Fellow panelist Brad Ash, senior vice president of Insurance Services at The Doctors Company, stressed that there are really “no pricing guidelines for batch coverage” and “batch claims are unpredictable and often catastrophic.” The session titled The Changing and Expanding Role of Emergency Medicine dealt with the growing demands on the nation’s emergency departments as they have become gatekeepers on readmissions in a healthcare reimbursement model that punishes readmissions. According to panelist Tom Syzek, vice president of Online Learning at The Sullivan Group, there is both spoken and unspoken pressure coming from hospital administrations not to readmit patients. The moderator, Robert Blasio of Western Litigation Inc., noted an expected physician deficit of 95,000 emergency physicians within the next five years, which requires the increased use of advanced practice clinicians and no one is certain of the medical liability implications of having these mid-levels take a greater role in the emergency department. The session Coming to You: Medical Marijuana MedPL Exposures explored how malpractice carriers underwrite this relatively new exposure. While the exposure is greater for general liability, the panelists emphasized how extremely specific the policy language is for insurers who cover the medical liability side. Panelist Deb Goldberg, managing director at Markel Corp., noted that while the policy language can be very explicit, the insureds have a “strong interest in meeting all the requirements of the policy and state law.” The second day of the symposium began with Healthcare Access in Your Big Box Store. This very new phenomena has been wildly popular with consumers because its one-stop shopping makes services accessible for the time challenged, while the low-cost of primary care in retail medical clinics for those seeking value. With almost 2,000 retail clinics currently operating in stores like Wal-Mart, Target and Walgreens, and another 1,000 expected to open in the next year, panelist Alice Epstein, allied healthcare facilities risk control liaison for CNA Financial, said that this model is perfect for younger consumers who “value immediate attention over a physician/patient relationship.” Panelist Kevin O’Brien, senior vice president at Arch Insurance Group, added that while convenience care is not yet regulated, these clinics practice protocol-based medicine, and if they follow their protocols, there is low-risk involved. Ending the two-days of educational sessions was Mo’ Money, Mo’ Problems: Do Limits Increase Claims Values where panelists tackled the question of whether being overinsured invites higher-value losses or being underinsured can actually lower ones exposure. Panelist Michael Barrett, a plaintiff attorney, acknowledged that the amount of insurance is first and foremost in a lawyer’s mind when considering a case. Panelist Paul Marshall, senior vice president of the Healthcare Liability Practice Group at the Marsh & McLennan Agency, argued that being underinsured could generate anger in a jury and invite bad faith punitive damages, while William McDonough, managing principal at Integro Insurance Brokers, said that he has never subscribed to the idea that you can be overinsured because he believes “a claim is worth what a claim is worth.”