Summaries of recent developments related to medical malpractice in four states appear below.

* Indiana: The rates that physicians pay to participate in the state Patient’s Compensation Fund will decrease by 19.1% next year, and the rates that hospitals pay will decrease by 1.3%, according to the Indiana Department of Insurance, the Indianapolis Star reports. The decreases, the first since the establishment of the fund in 1976, will take effect in March 2008. Physicians and hospitals that decide to participate in the fund receive $1 million more than the $250,000 in malpractice insurance that they must obtain on the private market. In addition, participation in the fund caps their medical liability at $1.25 million. The fund also provides compensation for patients injured by health care providers (Lee, Indianapolis Star, 12/14).

* Maryland: The Medical Mutual Liability Insurance Society of Maryland, the largest malpractice insurer in the state, last week announced plans to use an almost $100 million dividend to reduce malpractice insurance premiums for physicians by 8%, pay physicians $13.8 million in credits against premiums for 2008 and return $84 million to the state for emergency subsidies, the Baltimore Sun reports (Salganik, Baltimore Sun, 12/14). State Insurance Commissioner Ralph Tyler last month ruled that Med Mutual, which had declared a $68.6 million dividend, should return the full amount to the state. However, Tyler allowed Med Mutual 30 days to develop an alternative plan. Med Mutual said that conditions in the malpractice insurance market have since improved and allowed them to declare a larger dividend (Dominguez, AP/Washington Times, 12/14).

* New Jersey: The state Medical Malpractice Liability Insurance Premium Assistance fund plans to pay $16.4 million in subsidies to help physicians in the highest-risk specialties cover the cost of malpractice insurance, state Banking and Insurance Commissioner Steven Goldman announced last week, the Newark Star-Ledger reports. According to Goldman, physicians who accept the subsidies must continue to practice in the state for two years. The state as of Dec. 14 had sent checks to 1,200 physicians (Livio, Newark Star-Ledger, 12/15).

* New York: The 475 physicians in the state who participate in the state Medical Malpractice Insurance Plan, which provides malpractice insurance to those who cannot obtain coverage in the private market, might have to pay significantly higher premiums because the fund has a $525 million deficit, Long Island Newsday reports. According to the state Insurance Department, the deficit indicates a “looming insurance industry crisis,” as malpractice insurers must cover the cost. A Medical Malpractice Task Force has begun to evaluate the fund and plans to send a report to Gov. Eliot Spitzer (D) by the end of the year (Ochs, Long Island Newsday, 12/17).

Reprinted with kind permission from http://www.kaisernetwork.org. You can view the entire Kaiser Daily Health Policy Report, search the archives, or sign up for email delivery at http://www.kaisernetwork.org/dailyreports/healthpolicy. The Kaiser Daily Health Policy Report is published for kaisernetwork.org, a free service of The Henry J. Kaiser Family Foundation. © 2005 Advisory Board Company and Kaiser Family Foundation. All rights reserved.

Dr. Jimmy Devins TD, Minister of State for Disability and Mental Health, noted the publication yesterday by the HSE of the Report of the Inquiry into Allegations of Abuse at the Brothers of Charity Services, Galway between 1965 and 1998.

The report, commissioned by the HSE, deals with allegations of serious abuse at the Holy Family School, Renmore, Galway City and the Brothers of Charity Residential Services, Clarinbridge, Co Galway.

The Minister said:

On behalf of the Government, I wish to reiterate the Taoiseach’s formal apology to all those affected by abuse in institutions operated or funded by the State, including the Brothers of Charity Services, Galway.

The Report is a further example of how some of the most vulnerable people in society were badly let down in the past.

The Minister welcomed the actions taken by the HSE to support those affected by the abuse, and to ensure that all service users today can be assured of a quality service.

The Minister said that the Report, prepared by Dr. Kevin McCoy, contains important lessons for the future, from which we must all learn. In particular, he emphasised the need for the protection of vulnerable service users and the promotion of a quality environment in which they live:

I am committed to ensuring that all residential facilities for people with a disability are independently monitored and inspected by the Health Information and Quality Authority. As HIQA prepares for this role, I have asked the HSE to take all possible action to ensure the quality and safety of these services.

The HSE has published Guidance for the Provision of Residential Services for Young People with Disabilities. The HSE will roll out a Service Review System immediately to support service providers in implementing the quality criteria contained in the Guidance document. In addition, the HSE is arranging for changes to the Service Level Agreements that it has with its disability service providers to enable it to review the quality and safety of the services which it funds.

The Minster thanked Dr. McCoy for his work on the report.

http://www.dohc.ie

A 55 year old nurse from Thornton Heath, Surrey was suspended on Friday, 23 November, 2007 at a Conduct and Competence hearing of the Nursing and Midwifery Council in London.

Mr Tennyon Lansana was employed by Bromley Hospital NHS Trust at the Princess Royal University Hospital in Farnborough, Kent when on several occasions he demonstrated a lack of standards of knowledge, skill and judgement required to practise without supervision as a staff nurse on a medical ward.

Following a two day hearing, an independent panel of the Nursing and Midwifery Council’s (NMC) Conduct and Competence Committee found that his fitness to practise was impaired and that he should be suspended from the Register for a period of 1 year. During this time he may undertake further training and education in order to bring his level of competence up to the standard expected of any nurse working in the UK.

Commenting on the outcome of the hearing, NMC spokesperson Leila Harris said,

“The panel reached this decision having heard the evidence that proved the charge before it. Mr Lansana did not possess the requisite knowledge, skills and abilities for lawful, safe and effective practice without direct supervision as set out in the NMC Code of Conduct. The panel has a duty to act in the public interest and to preserve the public’s confidence in the profession.”

The Nursing and Midwifery Council (NMC) is the UK regulator for two professions, nursing and midwifery. The primary purpose of the NMC is protection of the public. It does this through maintaining a register of all nurses, midwives and specialist community public health nurses eligible to practise within the UK and by setting standards for their education, training and conduct. Currently the number of registrants exceeds 682,000. The Nursing and Midwifery Order 2001 (The Order), sets out the NMC’s role and responsibilities. The independent panel is selected from a pool of individuals appointed by the Appointments Board. They come from a variety of backgrounds and are not NMC Council members, nor do they sit on any committee of the Council.

Presidential candidate and former Massachusetts Gov. Mitt Romney (R) on Tuesday in Iowa called for caps on noneconomic and punitive damages in medical malpractice lawsuits, the AP/Houston Chronicle reports. During a speech at Des Moines University, Romney said, “I believe we have to enact federal caps on noneconomic and punitive damages related to malpractice,” adding, “These lottery-sized awards and frivolous lawsuits may enrich the trial lawyers, but they put a heavy burden on doctors, hospitals and, of course through defensive medicine, they put a burden on the entire health care system.”

Romney said that as president he would encourage states to establish health courts overseen by judges who have experience in malpractice lawsuits and to sanction attorneys who repeatedly file frivolous claims (Pitt, AP/Houston Chronicle, 11/20). “We’ve got to rein in the incessant cost of medical liability,” Romney said (Pierce, Washington Times, 11/21).

In addition, Romney said that as president he would seek to increase flexibility for state health care programs and provide incentives for states to revise health insurance regulations to help reduce the cost of private coverage (Schulte, Des Moines Register, 11/21).

Richardson Discusses Single-Payer System
Presidential candidate and New Mexico Gov. Bill Richardson (D) on Tuesday at Rivier College in New Hampshire said that, although he is not entirely opposed to the idea of a single-payer health care system, he prefers to allow U.S. residents to have a choice, the AP/Contra Costa Times reports.

He said, “I’m starting to warm up to it a little bit because I get very frustrated with insurance companies. … They tick me off, and I wish I could say, ‘You’re out of this business.’ The problem with that is, fundamentally, I believe every American deserves choice.” In addition, he said that a single-payer health system would lead to a new, complex bureaucracy and that and that he would prefer to establish new regulations for insurance companies (Ramer, AP/Contra Costa Times, 11/20).

Reprinted with kind permission from http://www.kaisernetwork.org. You can view the entire Kaiser Daily Health Policy Report, search the archives, or sign up for email delivery at http://www.kaisernetwork.org/dailyreports/healthpolicy. The Kaiser Daily Health Policy Report is published for kaisernetwork.org, a free service of The Henry J. Kaiser Family Foundation© 2005 Advisory Board Company and Kaiser Family Foundation. All rights reserved.

A 53 year old nurse from Birmingham who was found guilty of a string of allegations of misconduct which occurred between May and July 2005 will no longer be able to work as a nurse.

Yvonne Zanele Cemane was employed at Rylands Nursing and Residential Home at the time she was charged with 8 counts of misconduct between including a number of instances where she failed to demonstrate an appropriate level of anatomical knowledge, failed to take appropriate precautions when dealing with a patient with MRSA and failed to respect the dignity of a patient who was incontinent.

Following a two day hearing ending yesterday, an independent panel of the Nursing and Midwifery Council’s (NMC) Conduct and Competence Committee found that her fitness to practise was impaired and determined that her name should be struck from the NMC register.

Commenting on the outcome of the hearing, NMC spokesperson Leila Harris said,

“The panel reached this conclusion having given regard to the seriousness of the offences, particularly in relation to a vulnerable patient. Their decision reflects a fundamental breach of the standards of basic nursing care and to keep this person on the register would mean a continued risk to patients. The panel has a duty to act in the public interest and to preserve the public’s confidence in the profession.”

Notes:

1. The Nursing and Midwifery Council (NMC) is the UK regulator for two professions, nursing and midwifery. The primary purpose of the NMC is protection of the public. It does this through maintaining a register of all nurses, midwives and specialist community public health nurses eligible to practise within the UK and by setting standards for their education, training and conduct. Currently the number of registrants exceeds 682,000. The Nursing and Midwifery Order 2001 (The Order), sets out the NMC’s role and responsibilities.

2. The independent panel is selected from a pool of individuals appointed by the Appointments Board. They come from a variety of backgrounds and are not NMC Council members, nor do they sit on any committee of the Council.

Summaries of recent developments related to medical malpractice in two states appear below.

* Arizona: Arizona Senate Health Committee Chair Carolyn Allen (R) this year plans to reintroduce a bill that would make medical malpractice lawsuits against emergency department physicians more difficult for plaintiffs to win, the Capitol Media/Arizona Daily Star reports. The legislation would require plaintiffs to prove by “clear and convincing evidence” that the care provided by physicians did not meet accepted professional standards. The state Legislature in 2006 passed an identical bill, but Gov. Janet Napolitano (R) vetoed the legislation, which she said would not encourage physicians to work in EDs (Fischer, Capitol Media/Arizona Daily Star, 11/13).

* Illinois: Cook County Judge Diane Larsen has declared unconstitutional a 2005 state law that caps noneconomic damages in malpractice lawsuits at $500,000 in cases against physicians and $1 million in cases against hospitals, the Chicago Tribune reports. Larsen ruled that the caps violate a clause in the state constitution that separates the powers of state Legislature and judiciary. The case likely will move to the Illinois Supreme Court, which twice in the past 30 years has stuck down state laws that sought to cap damages in negligence lawsuits (Sachdev, Chicago Tribune, 11/13).

Reprinted with kind permission from http://www.kaisernetwork.org. You can view the entire Kaiser Daily Health Policy Report, search the archives, or sign up for email delivery at http://www.kaisernetwork.org/dailyreports/healthpolicy. The Kaiser Daily Health Policy Report is published for kaisernetwork.org, a free service of The Henry J. Kaiser Family Foundation. © 2005 Advisory Board Company and Kaiser Family Foundation. All rights reserved.

The California Department of Managed Health Care on Thursday fined Health Net $1 million for lying to state investigators about paying employees bonuses based on the number of individual health insurance policies they canceled, the San Francisco Chronicle reports (Colliver, San Francisco Chronicle, 11/16). State law prohibits insurers from providing compensation to claims reviewers based on their claims decisions.

According to court documents released last week, the insurer paid its senior analyst in charge of policy cancellations more than $20,000 in bonuses based in part on meeting or exceeding targets for rescinding individual health insurance policies, according to court documents released Thursday. According to the documents, Health Net canceled about 1,600 policies between 2000 and 2006, and as a result, avoided paying a total of $35.5 million in medical expenses (Kaiser Daily Health Policy Report, 11/12).

The fine was the first the state has assessed against an insurer for withholding information about employee bonuses. DMHC Director Cindy Ehnes said, “This is a penalty for a failure to be truthful” with state regulators (Costello, Los Angeles Times, 11/16). Health Net accepted a consent agreement and agreed to no longer link bonuses to policy cancellations (San Francisco Chronicle, 11/16).

Meanwhile, the state still is investigating Health Net’s cancellation policies, which could lead to additional penalties. The state Department of Insurance also is investigating the case. DMHC regulators also are investigating policy cancellations by Blue Cross of California, Blue Shield of California, Kaiser Foundation Health Plan and PacifiCare Health Systems (Los Angeles Times, 11/16). State officials already have fined WellPoint, Blue Cross’s parent company, $1.2 million and Kaiser Permanente $325,000 for improperly canceling coverage (San Francisco Chronicle, 11/16). Insurers argue that policy cancellations are intended to prevent fraud and ensure that premiums are affordable (Los Angeles Times, 11/16). Please note: The Kaiser Family Foundation is not associated with Kaiser Foundation Health Plan, Kaiser Permanente or Kaiser Industries.

Reprinted with kind permission from http://www.kaisernetwork.org. You can view the entire Kaiser Daily Health Policy Report, search the archives, or sign up for email delivery at http://www.kaisernetwork.org/dailyreports/healthpolicy. The Kaiser Daily Health Policy Report is published for kaisernetwork.org, a free service of The Henry J. Kaiser Family Foundation. © 2005 Advisory Board Company and Kaiser Family Foundation. All rights reserved.

FDA on Thursday issued proposed guidelines to increase transparency regarding potential conflicts of interest of members on its advisory panels, Dow Jones reports. Advisory panels — convened to offer recommendations to FDA on health policy issues, and new drugs and medical devices — are made up of external academic, medical and federal experts (Corbett Dooren, Dow Jones, 11/15). Under the new proposed rules, experts on advisory panels would be required to disclose any financial ties to the industry being considered, and they also would be asked to detail the reasons that they still should be allowed to serve, AP/Long Island Newsday reports. If FDA issues a waiver, the disclosure form then would be posted on the agency’s Web site about two weeks before the panel convenes for a meeting, AP/Newsday reports.

Under current procedures, FDA announces when waivers are granted but does not publicly post the disclosure forms. FDA Commissioner Andrew von Eschenbach said the objective is to have the process “conducted in an open, transparent way so people will have confidence and the appropriate trust” in the agency. The proposed rules will be open for 60 days of public comment, after which FDA will decide whether to adopt or revise them (Yen, AP/Long Island Newsday, 11/15).

Reprinted with kind permission from http://www.kaisernetwork.org. You can view the entire Kaiser Daily Health Policy Report, search the archives, or sign up for email delivery at http://www.kaisernetwork.org/dailyreports/healthpolicy. The Kaiser Daily Health Policy Report is published for kaisernetwork.org, a free service of The Henry J. Kaiser Family Foundation. © 2005 Advisory Board Company and Kaiser Family Foundation. All rights reserved.

More than 350 healthcare attorneys from across the country will meet in Chicago from December 2-4, 2007 to attend the American Health Lawyers Association’s 2007 Fundamentals of Health Law Program at the Marriott Chicago Downtown Hotel. With more than twenty separate sessions, this program is designed to be an excellent refresher for experienced health lawyers and a valuable training program for paralegals, new associates and in-house counsel.

Sessions at this year’s Fundamentals Program will cover such essential topics as Medicare Parts A-D, provider liability, HIPAA, Anti-Kickback and Stark, false claims and overpayments, corporate compliance and governance, and many more. In addition, speakers will address key legal issues in the breakout sessions including tax, antitrust, long term care/home health, labor and employment, medical staff issues, Medicaid, and managed care. The program will also include a luncheon and presentation on using the Association’s resources.

The program’s distinguished faculty not only dispenses their knowledge of legal issues, but will also provide insight into the challenges ahead in order to help attendees build an effective legal practice. The networking opportunities with other new associates, in-house counsel, and the Association’s leaders at the Fundamentals Program offer an invaluable experience to attendees.

“The Fundamentals Program is a tremendous learning experience for anyone who needs a solid grounding in health law, whether they are attorneys new to the area, compliance officers, finance officers, CEOs or paralegals. Everyone involved in health care should have a fundamental understanding of health law, and the Fundamentals of Health Law Program is the perfect venue to obtain that knowledge,” said Peter M. Leibold, AHLA’s Executive Vice President and Chief Executive Officer.

Complete program information and online registration for the Fundamentals of Health Law program are available on Health Lawyers’ website at http://www.healthlawyers.org/programs.