Medical Liability Monitor December 2021 Highlights
December 6, 2021
The December 2021 issue of Medical Liability Monitor features the following articles and more. Click here to subscribe today:
Federal Appeals Court Narrows PREP Act Liability Protections
Almost two years after the U.S. government declared COVID-19 a public health emergency, federal courts are beginning to narrow the application of the Public Readiness & Emergency Preparedness (PREP) Act, a law invoked via emergency declaration in early 2020 to shield providers of pandemic countermeasures from civil liability. A recent, precedent-setting federal appeals court decision raises concern over the scope of protections for hospitals, nursing homes and healthcare providers …
Milliman Inc. Analysis of Third-Quarter Financial Results for MPL Specialty Writers
Milliman actuaries note continued premium growth continued for medical professional liability specialty writers in the third quarter, although it was driven more by non-MPL premiums — which have been increasing by more than 30% per annum — than earlier this year ...
California Hospitalist Wants Federal Court to Declare Disciplinary Hearings Unconstitutional
A California hospitalist who had his hospital privileges rescinded in 2015 for substandard performance and inadequate record keeping filed a civil action last month asking a federal court to reinstate those privileges, alleging a lack of due process during medical disciplinary hearings violates the Fourteenth Amendment of U.S. Constitution …
ProAssurance Q3 Results Benefit from NORCAL Acquisition
Last month, ProAssurance Corp. reported a net income of $12.2 million for the quarter ended Sept. 30, 2021. The company posted a third-quarter current-accident-year loss ratio of 85.2%, net-loss ratio of 82.1%, underwriting-expense ratio of 24.5%, combined ratio of 106.6% and operating ratio of 99.5%. ProAssurance also boasted a $34.5 million net investment result, an increase of 58.5% over the same period in 2020. ProAssurance’s Specialty P&C Segment reported $235 million in gross premiums written for the third-quarter 2021, up from $158.3 million for the same period in 2020. The Specialty P&C Segment’s increase in gross premiums written is primarily attributed to ProAssurance’s acquisition of NORCAL Group, which was finalized on May 5, 2021 …
AMA Adopts Policy to Combat Disinformation by Healthcare Professionals
Acknowledging the dangerous spread of public health disinformation during the COVID-19 pandemic, physician, resident and medical student members of the American Medical Association (AMA) House of Delegates adopted policy last month aimed at combatting public health disinformation disseminated by healthcare professionals …
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AM Best Affirms Superior FSR, Credit Ratings of MLMIC Insurance Company
November 30, 2021
AM Best has affirmed the Financial Strength Rating (FSR) of A+ (Superior) and the Long-Term Issuer Credit Ratings (Long-Term ICR) of “aa-” (Superior) of MLMIC Insurance Company (MLMIC) (New York, NY). The outlook of these Credit Ratings (ratings) is stable.
The ratings reflect MLMIC’s balance sheet strength, which AM Best assesses as strongest, as well as its adequate operating performance, limited business profile and appropriate enterprise risk management. The ratings also benefit from the financial support provided by MLMIC’s direct parent company, National Indemnity Company, which is ultimately owned by Berkshire Hathaway Inc.
MLMIC has a long track record of favorable reserve development and adequate underwriting returns. In recent years, net operating results have been somewhat skewed by a 100% loss portfolio transfer (LPT) and an 85% quota share agreement with National Indemnity Company, which were executed in 2018. As a result, favorable reserve development related to accident years covered by the LPT (for all business written prior to the acquisition by National Indemnity Company in 2018) no longer benefits MLMIC’s underwriting results. The pace of favorable reserve development was likely further slowed by the impact of the COVID-19 pandemic on the New York court system, which reduced the speed with which claims were closed and delayed the recognition of possible favorable reserve development on more recent accident years that are not covered under the LPT. As such, the company’s net underwriting results in the most recent years have not yet benefited from the same degree of reserve releases seen in previous years. The direct underwriting results remain in line with historical trends, however, and further support the current operating performance assessment.
MLMIC’s insurance portfolio is concentrated in the medical malpractice line of business. The company underwrites risks only within New York state, which is one of the nation’s most challenging markets for medical professional liability. However, management has been able to operate successfully through underwriting cycles while maintaining MLMIC’s leading market position within New York. In addition, risk management capabilities have proven appropriate for the risk profile of the company.
Beazley hires MPL expert Joseph Washington as U.S. Healthcare Underwriter
November 16, 2021
As specialist insurer Beazley moves to expand its Hospital Professional Liability portfolio in the United States, Joseph Washington has been appointed its underwriter for U.S. Healthcare, beginning his role on Monday, November 15, 2021.
With more than 25 years of medical professional liability experience, gained at Berkshire Hathaway and Zurich, Joseph has specialized in providing this type of coverage for hospitals throughout his career and brings with him a wealth of expert knowledge and experience in the field.
“With Beazley's reputation for working with organizations that manage their own risk effectively, they're a well-respected player in this market,” Washington said. “Naturally, I am very much looking forward to working with them to open distribution for Hospital Professional Liability here in the states.”
“This is an exciting hire for us, as we continue to target double-digit growth into 2022,” said Matt McCullaugh, focus group lead for US Hospitals at Beazley. “While the London distribution remains core to Beazley’s US Hospitals offering, there is a real opportunity to access more middle market US hospital business, by opening up distribution locally. With his vast experience in this area, Joseph is the ideal candidate to help us achieve this.”
Washington will be based in Atlanta.
Illinois Jury Awards $14.75 Million in Medical Malpractice Lawsuit
November 15, 2021
A jury in Vermilion County, Illinois, reached a verdict of more than $14.75 million today in a medical malpractice action brought against Presence Hospitals, PRV, the former operator of the Presence United Samaritans Medical Center in Danville, Ill. The lawsuit was brought on behalf of L.B., a disabled person, through her guardian CIBC Bank USA.
The lawsuit alleged that Presence, individually and through its agents, was negligent in the medical care and treatment provided to L.B. while she was an inpatient at Presence United Samaritans Medical Center on April 22, 2014. L.B. was pregnant with twins and underwent a cesarean section procedure by the obstetrician on call, Mohannad Rajjoub, MD. Following the delivery of the twins, Rajjoub attempted to remove L.B.'s placenta when she had a condition known as placenta accreta, in which the placenta attaches deeply into the uterine wall. As a result, plaintiff presented evidence that the placenta was torn, and L.B. suffered massive hemorrhaging resulting in hypoxic brain injury and seizure like activity.
The plaintiff further alleged that negligent conduct of the anesthesiologist, Damon Green, MD, contributed to L.B.'s injuries. Plaintiff presented evidence that following the massive hemorrhage, L.B. did not receive proper resuscitative care which contributed to the hypoxia. This evidence included that no blood was available in the operating room for transfusion and that more than 30 minutes elapsed before the first transfusion was begun.
Plaintiff's medical expert in rehabilitation testified that L.B. sustained a severe and diffuse brain injury with global consequences, and that her intellectual age is 3 years, 3 months with an estimated IQ less than 34. L.B. is virtually totally dependent on all aspects of daily life and will require 24-hour, life-long care.
Presence Hospitals denied that Rajjoub and Green were its agents. It further maintained at trial that L.B. was not stable for transfer to a different hospital and required an emergency c-section during which the doctors and the hospital each acted within the standard of care.
The jury awarded the plaintiff a total of $14,756,744.03 consisting of $3 million each for loss of a normal life and pain and suffering, $7.4 million for future medical and caretaking expenses and $1,356,744.03 for past medical expenses.
Cooperative of American Physicians Announces Retirement of Deidri Hoppe from CAP Physicians Insurance Agency, Names Michael Dyse Her Successor
November 15, 2021
The Cooperative of American Physicians (CAP) today announced the upcoming retirement of CAP Physicians Insurance Agency president and chief executive officer Deidri (Dee) Hoppe. After 10 years of service to CAP members, Hoppe will retire at the end of December 2021. She will be succeeded by Michael Dyse, who is currently CAP Agency vice president.
Hoppe joined CAP in 2011 and previously held the position of vice president, where she oversaw the property casualty insurance division. She was promoted to president and CEO of CAP Agency in 2016.
“Dee has been a strong and effective leader, instrumental in the growth of all lines of the CAP Agency,” said Sarah Scher, CAP chief executive officer. “Her use of technology to build the agency and the fact that she delivered almost $3 million in dividends to the CAP enterprise from the agency are particularly noteworthy. We will miss her and wish her much happiness in her retirement.”
Michael Dyse will take the reins as CAP Agency president, effective Jan. 1, 2022. He has worked at CAP since 2014. According to CAP, before moving to the Agency as vice president earlier this year, Dyse served as assistant vice president, CAP Membership Services, where he managed the largest groups and accounts across the CAP enterprise.
“With Michael’s extensive background, strong work ethic and excellent interpersonal skills, he is sure to build upon the success of an already thriving agency,” Scher said. “Michael has been working with the agency as he transitions into his new position, and we are excited about the innovative thinking he has already demonstrated.”
Michael Roque Named Positive Physicians Insurance Co. President
November 15, 2021
Positive Physicians Insurance Co. announced today that Michael G. Roque has joined the medical professional liability insurer as its new president.
Bringing more than 25 years’ experience in medical professional liability on both the broker and carrier sides of the industry, Roque most recently served as chief operating officer at Integris Group. He specializes in strategic planning, operations management and market growth.
“We are very pleased to have Michael join our team,” Lewis Sharps MD, Positive Physicians chief executive officer. “His knowledge and experience within the MPL industry will be a tremendous asset for PPIC. We look forward to his leadership and insight as we continue to expand and change the landscape of the MPL industry.”
AM Best Revises Issuer Credit Rating Outlook to Stable for Members of Kansas Medical Mutual Group
November 8, 2021
AM Best has revised the outlook of the Long-Term Issuer Credit Ratings (Long-Term ICR) to stable from negative and affirmed the Financial Strength Rating of B++ (Good) and the Long-Term ICRs of “bbb+” (Good) of Kansas Medical Mutual Insurance Company, and its subsidiary, KAMMCO Casualty Company, Inc. These companies are referred to collectively as Kansas Medical Mutual Group. The outlook of the FSR is stable. Both companies are domiciled in Topeka, KS.
The ratings reflect Kansas Medical Mutual Group’s balance sheet strength, which AM Best assesses as very strong, as well as its marginal operating performance, limited business profile and appropriate enterprise risk management (ERM).
The revised Long-Term ICR outlook to stable reflects actions taken by the group to stabilize operating performance and capital levels in recent years. These actions have demonstrated the effectiveness of the group’s risk management capabilities through improvements in operational efficiencies, adaptation to recent tort reform events and executing its strategy to refocus on its core medical professional liability (MPL) business. AM Best considers the group’s ERM framework appropriate with a defined risk appetite and tolerances as well as stress test scenarios for critical risks that could impact the group.
The group’s balance sheet strength is supported by the strongest level of risk-adjusted capitalization, as measured by Best’s Capital Adequacy Ratio (BCAR), partially offset by declining level of policyholders’ surplus and other balance sheet metrics over the prior five-year period. During the earlier portion of the prior five-year period, the group reported significant weakening of earnings and reduced surplus due to higher-than-expected underwriting losses and diminished investment returns. These factors, along with several one-off charges, including the write-off of its KAMMCO Health Solutions subsidiary, which had generated significant operating losses and strained liquidity, culminated in a significant loss in 2019.
Performance improved in 2020 and through the first six months of 2021, with the group reporting modest organic surplus growth, due to the impacts of expense reductions, modest annual rate actions and reduced frequency.
The group’s limited business profile reflects its monoline concentration of risk in the MPL sector and heavy geographic concentration in Kansas. A 2019 judicial ruling resulted in the removal of noneconomic damage caps on personal injury cases in Kansas; however, uncertainty remains as to whether this applies to medical malpractice actions until further clarification from the Kansas Supreme Court. The group has taken proactive measures by modifying its reserving procedures for noneconomic damages, and reviewed all outstanding cases and increased reserves accordingly.
Coverys names Joseph P. Sullivan, Jr. as Chief Underwriting Officer
October 12, 2021
Coverys recently announced the appointment of Joseph P. Sullivan, Jr., as chief underwriting officer, effective Oct. 11, 2021. Sullivan will oversee all underwriting segments including: Traditional, Custom Accounts, Specialty, Programs & Allied Health, and Value Based Care, as well as liaising with Coverys Lloyd's of London Syndicate 1975.
Sullivan brings more than 25 years of experience serving the healthcare industry with several top global insurers, including Zurich, AIG and CNA. He received his Bachelor of Science in business administration from Marquette University in Milwaukee, and currently resides in Wonder Lake, Ill.
“Joe has deep technical underwriting experience, and more importantly, a proven track record setting underwriting strategy, guidelines, and authority, as well as building infrastructure to support different product lines. His vast experience will add a new perspective to our work and serve our customers well,” said Joseph G. Murphy, president and CEO.
MPLA: Good Samaritan Health Professionals Act Would Offer Protections for Medical Volunteers and Preserve Patient Access to Care
October 7, 2021
Editor’s Note: The Medical Professional Liability Association (MPL Association) president and CEO Brian K. Atchinson issued the following statement about the Good Samaritan Health Professionals Act of 2021 (S. 2941/H.R. 5239) that was introduced by Senators Bill Cassidy, MD, and Angus King as well as Representatives Raul Ruiz, MD, and Larry Bucshon, MD:
“Over the past year and a half, healthcare professionals around the nation have shown their selfless dedication to provide care for an overwhelming wave of COVID-19 patients. During the pandemic and in the wake of recent natural disasters, physicians, nurses, and others have stepped in to volunteer their medical services, sometimes crossing state lines to offer access to quality, timely medical care. The current patchwork of state laws designed to protect medical volunteers from unwarranted medical liability lawsuits are ambiguous and inconsistent, especially when applied to large-scale disasters. Unfortunately, current federal law also falls short in providing our frontline workers with the predictability and peace of mind that they need when responding to calamities. Consequently, vital medical volunteers are deterred from providing essential services at those times when their help is most needed.
The Good Samaritan Health Professionals Act of 2021 would provide civil liability protections to licensed healthcare professionals who volunteer their time and skills in times of greatest crisis. The bill also would preserve victims’ access to compensation if a volunteer’s egregious conduct results in injury.
We applaud Senator Cassidy, Senator King, Representative Ruiz, and Representative Bucshon for introducing this measure. The MPL Association looks forward to working with its allies on Capitol Hill and the medical community to build bipartisan support in Congress and advocate for the enactment of this critical piece of legislation.”
More information on the Good Samaritan Health Professionals Act of 2021 is available here.
Sens. Cassidy, King Reintroduce Bill to Protect Disaster Relief Health Professional Volunteers
October 7, 2021
U.S. Senators Bill Cassidy, MD, and Angus King reintroduced the Good Samaritan Health Professionals Act to provide medical professionals with a limited, but consistent, level of legal protection while volunteering during federally-declared disasters. Senators Lisa Murkowski, Marsha Blackburn, Roger Wicker, John Boozman, Cindy Hyde-Smith, Jeanne Shaheen and Joe Manchin co-sponsored the bill.
The Volunteer Protection Act of 1997 sought to protect those volunteering through non-profit agencies or government entities from litigation over possible economic damages they may cause while volunteering. However, this act fails to protect persons who volunteer independently of a formally recognized organization, or that cross state lines to volunteer. The combination of federal and state efforts to protect and encourage volunteering, specifically by health care professionals, can be unclear and insufficient in the event of a large-scale disaster. This bill only applies to licensed medical providers and will not protect against litigation if the damage was done in a deliberate or criminal manner.
“After disasters like Hurricane Katrina, Laura and Ida, recovery depends on the volunteers and medical professionals who selflessly come to Louisiana to help those in need,” said Sen. Cassidy. “The least we can do in return is provide needed legal protections while they aid disaster victims.”
“Amidst the chaos and sorrow of the last 18 months, the selflessness and caring of the American people has been on full display,” said Sen. King. “Time and time again, Americans have volunteered to help their fellow citizens in the face of a deadly pandemic and a series of natural disasters – especially our healthcare professionals, who have put their skills and training to use to save lives. These Good Samaritans can make all the difference in times of crisis, and should be celebrated and encouraged – not punished. Our legislation will permanently ensure that volunteers working to confront emergencies will have reasonable legal protections, allowing them to carry out their work and help Americans in need.”
“When disaster strikes, volunteers regularly step into action to help those in need. In Alaska, disasters like earthquakes and tsunamis can strike at any time – reminding us of the importance of help from volunteers, especially health professionals. Obstacles like a lack of civil liability protections are the last thing providers volunteering to respond need to worry about,” said Sen. Murkowski. “This bill protects physicians who step into action and help those in need during times of disaster.”
“Tennesseans are no stranger to natural disasters, but the quick recovery of the Volunteer State is the result of servant-hearted leaders supporting their neighbors in need,” said Sen. Blackburn. “This legislation is critical to protecting our volunteer community in Tennessee and across the nation.”
“Mississippians have a long history of standing with their fellow citizens in times of crisis,” said Sen. Wicker. “This bill would extend legal protections to health care professionals who volunteer and help our nation be more resilient in the face of natural disasters.”
“Stepping up during a crisis to provide medical care to Americans in need is a high calling. It should not open up selfless volunteers to legal jeopardy,” said Sen. Boozman. “Ensuring they have a basic level of liability protection is just common sense, and I’m proud to stand with my colleagues to empower these men and women to keep using their skills and training for good in times of disaster.”
“Mississippi is no stranger to disasters or to the blessings of people who bravely volunteer to begin the rescue and recovery process. At the same time, we are also willing and ready to volunteer in other states where needed,” said Sen. Hyde-Smith. “This legislation would serve to encourage more health professionals to volunteer by ensuring proper legal protections are in place for them.”
“Communities impacted by disasters rely on volunteer medical professionals to care for those in need. As West Virginians, we know this all too well after experiencing major flooding over the past decade that required volunteers to help administer vital care near disaster sites. I am proud to introduce this bipartisan bill to protect the medical volunteers who work to help our communities recover,” said Sen. Manchin.
“The Health Coalition on Liability and Access applauds Senators Cassidy and King for introducing the Good Samaritan Health Professionals Protection Act. Thanks to their earlier efforts, Congress wisely saw fit to prevent unwarranted liability lawsuits from being filed against volunteers treating victims of the coronavirus pandemic. It is now time for Congress to ensure similar protections for volunteer health professionals who will sacrifice their time and talents to aid those affected by future federal disasters and public health emergencies. The time to act is now, before the next calamity strikes,” said Mike Stinson, chair of the Health Coalition on Liability and Access (HCLA).