WV-ACC 5 th Annual Meeting Saturday, November 20 Charleston, WV. Senator Evan H. Jenkins. Executive Director, West Virginia State Medical Association

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1 WV-ACC 5 th Annual Meeting Saturday, November 20 Charleston, WV Senator Evan H. Jenkins Executive Director, West Virginia State Medical Association

2 Medical Politics - Overview Health Care Policy under the Dome A decade of accomplishments West Virginia Supreme Court of Appeals Health Care Policy in the Court MacDonald v. City Hospital

3 A Decade of Accomplishments 2001 SB 177: Provider Tax Repeal HB 2486: Prompt Pay Act HB 3242: Uniform Credentialing Application SB 117: Smokeless Tobacco Tax HB 2216: Patient s Bill of Rights 2001 Special Session HB 601: Limited Medical Liability Reform / Creation of Physician Mutual Insurance Program 2002 HB 4039: Mental Health Parity Act HB 4275: Guidelines for end of life care and pain management

4 2003 HB 2122: Comprehensive Medical Liability Reform / Creation of Physicians Mutual Insurance Company SB 105: Tobacco Tax Increase SB 336: Uniform credentialing application and re-credentialing application 2004 HB 4740: Patient Injury Compensation Fund HB 4022: ATV Child Safety Act 2005 HB 3174: Healthcare Provider Open Communications Act HB 2011: Innocent Prescriber Act HB 2816: Healthy Lifestyles Act 2006 SB 170: Creation of a Health Information Network

5 2007 SB 573: Creation of Physician Health Program HB 2380: Elimination of Sales Tax on Pharmaceuticals Administered in Physician Offices, Clinics & Hospitals SB 1001: Enabling E-Prescribing HB 2578: Preservation of Mental Health Parity Act HB 2583: Expansion of Newborn Screening Tests HB 2800: Establishment of Radiologist Assistant licensure 2008 HB 4515: Reporting of the Medically At-Risk Driver HB 4069: Mandatory Eye Screening for Driver s License Renewal SB 234: Creation of Maternal Mortality Review Team

6 2009 SB 207: Creation of a Uniform Maternal Risk Screening Tool SB 321: Certificate of Need Reform HB 2885: Mandated Study on the Creation of a Credentials Verification Organization (CVO) 2010 HB 4176: Creation of rules for establishment of a single Credentials Verification Organization (CVO) SB Requiring pharmacies provide personnel online access to controlled substances database SB 81 Creating WV Official Prescription Program Act SB 362 Prohibiting providing false information to obtain controlled substances prescriptions

7 Ever Vigilant June 30, 2010, Last day any West Virginia Physician paid the health care provider tax. The tax was fully phased out after a 10-year repeal. An estimated savings of almost $500 million. Advocacy or protection of scope of practice concerns. Ever vigilant of efforts by allied health professionals to expand the scope of their services into the practice of medicine. Continual monitoring of the medical malpractice landscape in the state and frequently engaging on the legislative front and in the courts to protect the Medical Liability Practice Act.

8 Health Care in the Court West Virginia Supreme Court of Appeals MacDonald v. City Hospital

9 MacDonald v. City Hospital James MacDonald October, year old male Admitted to City Hospital for treatment of pneumonia Significant medical history, kidney transplant, high blood pressure, insulin dependent diabetes mellitus, etc. Transferred to Winchester Medical Center, diagnosed rhabdomyolisis marked by destruction of skeletal muscle

10 MacDonald v. City Hospital James and Debbie MacDonald sued City Hospital and his treating physician Alleging medical negligence in the care of James MacDonald Jury trial in Circuit Court of Berkeley County Verdict for Plaintiffs Damages reduced per WV s non-economic damages cap Appeal to the WV State Supreme Court Accepted for review (4-1)

11 MacDonald v. City Hospital James MacDonald Past medical $ 92,000 Past lost wages 37,000 Past P/S 250,000 Future P/S 750,000 Debbie MacDonald Sorrow, mental anguish $500,000 Total Non-Economic Damages $1.5 million reduced to $500,000 per the cap

12 MacDonald v. City Hospital Challenging the constitutionality of the WV non-economic damages cap. Right to trial by jury Separation of powers Certain remedy rights Prohibition on special legislation Equal protection guarantee

13 MacDonald v. City Hospital Approx. 30 States limit non-economic damages 16 states have upheld 11 states have overturned Recent trends Illinois Feb overturned $500,000 cap on non-economic damages Georgia March 2010 overturned $350,000 cap on non-economic damages Maryland September 2010 upheld $350,000 general liability cap on non-economic damages

14 Tort Reform in West Virginia 1986 $1 million non-economic damages cap, etc Pre-filing certificate of merit, etc $250,000/$500,000 non-economic damages cap, etc.

15 WV Supreme Court History on Caps Robinson v. Charleston Area Medical Center (1991) $1 million non-economic damages cap upheld 5-0 Verba v. Ghaphery (2001) $1 million non-economic damages cap upheld 3-2

16 The Concern Lower caps mentioned in Robinson v. CAMC We emphasize at this point that our holding that the statutory cap at issue is reasonable is limited to the particular $1,000,000 cap before us. [A]ny modification the legislature [would] make[ ] is subject to being stricken as unconstitutional. A reduction of non[economic] damages to a lesser cap at some point would be manifestly so insufficient as to become a denial of justice[,] under, for example, the state constitutional equal protection or certain remedy provisions. Lucas v. United States, 757 S.W.2d 687, 700 (Tex. 1988) (Gonzales, J., dissenting).

17 The Impact of a Cap on Non-Economic Damages Milliman analysis indicates repeal of medical malpractice caps will increase physician liability claim costs in Illinois by 18% Unique tort environment in Illinois accentuates cost increase; impact on rates may be blunted Seattle Feb. 22, 2010 Milliman, Inc., a premier global consulting and actuarial firm, today released results from a study of physician professional liability in the State of Illinois. A Feb. 4 decision by the Illinois Supreme Court overturned caps on non-economic damages awarded to claimants. This change in the tort law is likely to have financial implications for insurers in Illinois. Indemnity claim severities will increase by approximately 23% and the average cost that insurers expend defending claims will increase by 10%, relative to what these costs would have been had the cap held. The average overall increase in claim severity will be approximately 18%.

18 Direct Written MPL Premium Countrywide ($ Billions) $14 $12 $10 $8 $6 $4 $2 $ Sources: Milliman analysis of A.M. Best Aggregates & Averages P/C Milliman analysis of National Underwriter Insurance Data Services from Highline Data

19 Direct Written MPL Premium West Virginia ($ Millions) $160 $140 $120 $100 $80 $60 $40 $20 $ Source: Milliman analysis of National Underwriter Insurance Data Services from Highline Data

20 Medical Liability Insurance Countrywide and West Virginia Direct Operating Ratio Countrywide West Virginia Source: West Virginia Offices of the Insurance Commissioner; November, 2009 Medical Malpractice Report

21 WV Board of Medicine New Licenses Issued Source: WV Board of Medicine

22 Tort Reform Works! California MICRA Texas Constitutional Amendment West Virginia!!

23 The Impact of a Cap on Non-Economic Damages Closed Claim Severities Variation in Claim Severities between States $700,000 $600,000 $500,000 $400,000 $300,000 $200,000 $100,000 $ Countrywide California Source: Milliman analysis of National Practitioner Data Bank public use data file, December 31, 2009

24 The Impact of a Cap on Non-Economic Damages Closed Claim Frequency per Physician Variation in Claim Frequencies between States, Base Year Note: Countrywide California Texas 2009 Exposure Estimated Milliman analysis of AMA Physician Characteristics and Distribution in the U.S., multiple editions Sources: Milliman analysis of National Practitioner Data Bank public use data file, December 31, 2009

25 Medical Liability Insurance Countrywide and West Virginia Direct Operating Ratio Countrywide West Virginia Source: West Virginia Offices of the Insurance Commissioner; November, 2009 Medical Malpractice Report

26 Claim Frequency (Suits Filed) as of 6/10 MPLA Claims Filed Delete Putnam Co. Source: West Virginia Offices of the Insurance Commissioner; November, 2009 Medical Malpractice Report

27 Claims Filing Decline In general, the number of claims filed has dropped significantly since the passage of the 2001 legislation. Specifically, the 2008 claim count is about 52% of the 2001 total. West Virginia Offices of the Insurance Commissioner; November, 2009 Medical Malpractice Report

28 Rate Change History (Percentage change) West Virginia Mutual Ins. Co Woodbrook Cas. Ins. Inc. (formerly Medical Assurance of WV, Inc.) Source: West Virginia Offices of the Insurance Commissioner; November, 2009 Medical Malpractice Report

29 Family Practice Premium in WV $24, $16,012 WV Mutual includes credits

30 Surgeon Premium in WV $82, $45,411 WV Mutual includes credits

31 Obstetrician Premium in WV $117, $63,051 WV Mutual includes credits

32 WV Board of Medicine New Licenses Issued Source: WV Board of Medicine

33 MacDonald v. City Hospital Briefs due Oct Amicus Brief effort WVSMA/WVHA/WVCAFP, etc. Oral arguments Jan./Feb (est.) The MacDonalds are represented by Center for Constitutional Litigation Washington, DC Final ruling late spring 2011 (est.)

34 Thank You Evan H. Jenkins West Virginia State Medical Association (304) ext. 15