AMC/NOMA Board of Directors Richard Ludgin. MD, JD, and James Lane, MD, along with Executive Vice President/Chief Executive Office Elayne R. Biddlestone, met with Ohio Department of Insurance (ODI) Director Ann Womer Benjamin on November 10 regarding the impact of medical malpractice issues on Northeastern Ohio physicians.
Director Womer Benjamin noted that the topic of the next Ohio Medical Malpractice Commission meeting is to bring in speakers from states that have employed certain measures to remedy med-mal - medical review panels, caps on attorney contingency fees, PCFs, etc. Representatives from Indiana, Wisconsin, New Mexico and Louisiana have been contacted to present information on the reforms in their respective states at future meetings. At the last commission meeting, the Ohio State Medical Board presented details on their Quality Improvement Program (QIP), which is designed to address quality of care complaints that do not warrant intervention by formal disciplinary action.
Legislators, such as Representative W. Scott Oelslager (R-Canton), have tried to obtain certain data to see if lawsuits are increasing and verdicts are going up. However, he has not been able to find a data source for this premise, since data is not collected or monitored to address the med-mal issue.
Dr. Ludgin mentioned that in Missouri they have mandatory claim reporting system. While Director Womer Benjamin has not discussed issues with anyone from Missouri, she did note the information and will conduct follow up. Director Womer Benjamin talked about the last Medical Malpractice Commission meeting, where they had a variety of speakers on the issue of medical errors. At that meeting, she asked the state medical board and others if there was any group out there that is promoting a protocol for handling medical errors? The answer from the state board was, "No, they do not think so," but it is required in medical ethics.
Dr. Ludgin refuted the statement and noted that Joint Commission on Accreditation of Healthcare Organizations (JCAHO) requires review on high-risk issues (root cause analysis) and encourages critical event policies. Director Womer Benjamin said it was more important how to handle the public disclosure of these events and noted that "it should not be within the hospitals." Dr. Ludgin said that JCAHO has a regulation that patients be advised of unintended outcomes. This regulation became effective in 2001. Any hospital that provides care to Medicare/Medicaid patients has to have a policy on disclosure.
Director Womer Benjamin voiced her concern as to how the judicial system would use the data. Physicians have told her incidents of how they have reported individuals only to be treated badly by their hospital. The group discussed the concept of "whistleblower protections".
Dr. Ludgin believes that the movement is to encourage anonymous reporting. He asked that, when the preliminary report comes out from the commission, if it will have solutions to these issues or just some steps? He also asked if ODI had anyone from The PEW Charitable Trusts (who did a study in Pennsylvania) speak on the subject? Director Womer Benjamin said she had not. She indicated, however, that ODI is doing a market conduct exam regarding the underwriting and rating of policies. The department has asked for a "data call" for information on lawsuits. She further acknowledged that it would be difficult to compel law firms to present information on cases they turned down as well as the ones they took, but that type of issue would be helped if we had medical review panels. While information collection was mandated in Senate Bill 281, the data from the clerks of courts is all collected differently.
Director Womer Benjamin has met with the CEOs of the five companies offering medical malpractice insurance in Ohio. All of them indicated that they are committed to the Ohio market and willing to cooperate with ODI. While the companies felt that the rates would not go up as dramatically as in the past, they had difficulty understanding the need for the data by ODI.
Dr. Ludgin asked the Director about The Ohio Hospital Association (OHA) plan and when she believes they will be "up and running?" While Director Womer Benjamin acknowledged receipt of OHA's corporate filing, she noted that they did not file rates as of yet. Dr. Ludgin said that The OHA Plan is of "great concern" to him. "From my understanding, in order for a physician to be eligible for the new product, the hospital would have to buy shares in the company that were equal to the total premiums paid by the physician. If that is not a stark violation of ethics, I'm not sure what is." Besides ignoring a request for their legal opinion on this issue, there is the question of what would be required of a doctor who is on the staff at several hospitals. Do all of the hospitals have to buy shares and pay out? They are outsourcing underwriting; they are outsourcing risk management. Director Womer Benjamin said her department is waiting for the paperwork from OHA.
Dr. Lane asked about rate changes and what the future might hold. He mentioned that physicians are not notified of rate changes in a timely fashion and that they should not have to "count on their brokers" for revised information. Director Womer Benjamin stated that companies will have to file 60 days in advance for a rate change. She is also trying to address the issue of advance notice requirement without legislative action.
Mrs. Biddlestone asked about preparing something for the ODI website or a mailer to physicians advising them about the differences in Risk Retention Groups (RRGs), Captives etc., and what oversight ODI had over these entities. Director Womer Benjamin stated that ODI is in the process of completing that now and the information will outline the differences in these products. Director Womer Benjamin welcomed the AMC/NOMA's assistance in disseminating this information.
The Director was also appreciative of AMC/NOMA's recent Med-Mal survey information, particularly details related to the services physicians indicated they had to eliminate or would curtail in the future if med-mal rates didn't improve. "This will continue until rates stabilize and there are changes in the med-mal climate," said Mrs. Biddlestone.
The other insurance products under review in Northeastern Ohio were discussed as was Senate Bill 120 legislation on joint and several liability. Dr. Ludgin stated that with SB 120 physicians do not realize the implications - doctors are now responsible for their entire amount. If there is a $1 million verdict against the doctor and 500,000 against the hospital, the doctor is responsible for that $1 million. If they are carrying 200,000/600,000, they will have the rest taken from their assets. No one is explaining this to physicians adequately. It was noted that there are resolutions being handed out to hospital medical staffs by a physician organization telling the medical staff to review the resolution and sign onto it. Director Womer Benjamin asked for a copy of this resolution.