Current Trends in Medical Malpractice
Presentation to the
Professional Liability Defense Federation
September 29, 2016
Denver, CO
Paul Ruiz – Claims Executive
Gen Re, San Francisco
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Proprietary Notice
The material contained in this presentation has been prepared solely for informational
purposes by Gen Re. The material is based on sources believed to be reliable and/or from
proprietary data developed by Gen Re, but we do not represent as to its accuracy
or its completeness. The content of this presentation is intended to provide a general guide to
the subject matter. Specialist advice should be sought about your specific circumstances.
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Welcome to Denver
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Welcome to Trends in Medical Malpractice
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Industry undercurrents driving change
Developing the next generation of trial attorney talent
Nursing claim developments
Dental claims developments
Impact of the Affordable Care Act
Additional miscellaneous items if time
‐ Frequency/Severity, Telemedicine, Cyber, Electronic Health
Records, National Counsel.
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Industry Undercurrents in Medical Malpractice
• The Market
‐ Trend of physicians becoming employees of hospitals and healthcare
systems.
‐ Continuing acquisition of physician practices by healthcare systems.
• Demand
‐ Aging Baby Boomers
‐ Affordable Care Act: 20M newly covered patients
• Supply
‐ Increased need for primary care and physician extenders
‐ Increased need for MPL (but fewer independent physicians requiring
MPL)
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Impact to MPL
• Declining market share for carriers leading to more mergers
and acquisitions
• Increased hospital insurance purchasing leverage
• Downward pressure on rates, decreased profitability
• Effects of industry consolidation
• Expense tightening
• Impact to defense firms
• What hasn’t changed…the need for quality claims and risk
management
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Developing Defense Attorneys
What it was…
• Several associates providing assistance.
• The partner is the trial attorney
• High defense costs
• Associates occasionally authorized to try the case
What it is…
• Frequency down, less cases for associates to gain experience
• Partners will keep the big cases, smaller cases usually get settled
And yet…
• Importance of talented and capable trial attorneys.
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Developing the Bench
- Identifying those associates with trial capabilities
- Allowing second chair
- Flexible billable hours
- Having an associate handle some of the witnesses
- Qualities of a capable defense attorney (from an
insurance point of view)
- New claims talent – where are they coming from?
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Nursing Claims Developments
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On the rise
$90M over the past 5 years
Foreign trained – more frequency, less severity
85% of nurses with 16+ years of experience had claims
Largest indemnity payments were with those in the 3-5 year
range
• Causes? (more responsibilities and demands = more claims,
deep pockets)
• What can be done?
‐ Risk management strategies, training (5 “Rs”),
documentation.
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Dental Claim Developments – Increased Severity
• Old v New Paradigm
• Procedures at the upper limits of training.
• Why?
‐ Patients, Dentists, the Economy, Plaintiff Attorneys?
• Impact on dental carriers?
‐ Premiums
‐ Defense Costs
• What to do?
‐ Importance of Risk Management
‐ Claim handling – settlement v trial
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Impact of the Affordable Care Act?
• Is the ACA going anywhere?
• Use of the ACA to mitigate future medical costs
‐ Example of future medical costs
‐ What are carriers and defense attorneys doing?
‐ What does the ACA not cover?
• Is the ACA a collateral source?
• How jurors may view the ACA
‐ Challenges to defense counsel
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Additional Medical Malpractice Items
• Less frequency. Causes. Is it here to stay?
• More severity. Causes.
‐ Selectivity of cases, creative damage arguments (early and aggressive, negative discount
rate, driving a wedge between insurer and insured)
• Telemedicine
• Cyber
• Electronic Medical Records
• Efficacy of using national counsel on select cases?
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Primary Takeaways
1. Significant market shifts with employed physicians, soft market, consolidation.
2. Mutual benefit of developing younger attorneys.
3. Hospitals and their carriers would do well to emphasize risk management and
training of their nurses given the increased responsibilities.
4. Carriers for dentists would also do well to focus on risk management efforts.
Consider case studies for their insureds. “Lessons from losses.”
5. ACA – Carriers and defense counsel should keep the provisions of the ACA in
mind when addressing future medical costs.
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Thank You
[email protected]
415-393-8436
Visit genre.com for more info.
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