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Medical Malpractice

Medical Malpractice Claims Still Rising

The impact of tort reform has lessened, and average claims severity is rising rapidly.
By: | March 3, 2014 • 3 min read
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Medical malpractice claims increased by nearly 8 percent in severity in 2012, driven by large claims costing $2 million or more, according to new research by insurer Beazley.

The findings, which form part of Aon Risk Solution’s 2013 Hospital and Physician Professional Liability Benchmark Analysis report, uncover an upward trend that started in 2006.

The average severity for closed claims with indemnity has climbed from just above $300,000 to almost $500,000 in the space of six years.

More worryingly, however, the research revealed that the gap in the average severity for closed claims with indemnity narrowed between all U.S. states and those states where tort reform has been passed — from $100,000 in 2009 to $50,000 last year.

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Steve Chang, head of Beazley’s health care claims team, told Risk & Insurance® that the report’s data supported his own findings over the last two years.

“We have similarly felt a very acute uptick in the most severe claims,” he said.<

"The most interesting part of the report was in the non-tort reform states. We have been feeling some pressure [in terms of claims] in some states that have historically been considered benign, and the report really confirmed our experiences."

Plaintiff’s attorneys “have become very savvy at circumventing the caps in place in tort reform states for non-economic damages in order to ensure their clients receive greater economic damage compensation.”

– Steve Chang, head of Beazley’s health care claims team

Chang said there has been a “spillover effect” with the migration of big verdicts awarded in favor of the plaintiff in traditionally high severity states to lower risk jurisdictions, adding that there was no longer a big geographical split as there had been before.

“We are getting a lot of these anomalies where a large verdict will push up the settlement values of subsequent cases and therefore courts are being forced to try cases they wouldn’t normally have considered five years ago, which is creating a vicious cycle,” he said.

Beazley, which maintains a claims database covering 38 percent of U.S. hospital beds, reported that plaintiffs’ attorneys were now pushing for inflated economic damages in the form of large life care plans in states where non-economic damages are capped.

“The knock-on effect is that plaintiffs’ lawyers in tort reform states have been reading about these verdicts in non-tort reform states and many are inclined to try and emulate these results,” said Chang.

“They have become very savvy at circumventing the caps in place in tort reform states for non-economic damages in order to ensure their clients receive greater economic damage compensation.”

An example of this significant shift in plaintiff attorneys’ strategy can be found in Maryland, which despite being a tort-reform state, experienced an increase in average closed claims severity from $423,000 in 2006 to $750,000 in 2012, according to the report.

These findings are backed up by Beazley’s own claims handling experience, said Chang.

The research found that plaintiffs have also switched their focus to high severity cases, driven by catastrophic injuries and the potential for large awards rather than pursuing high volumes of relatively low value cases.

Furthermore, Beazley’s research found that 43 percent of claims above $5 million related to obstetric procedures, with the rate of increase outpacing that of non-obstetric claims.

The Physician Insurers Association of America’s national database of medical professional liability claims reflects a steady increase in severity of claims for higher risk procedures such as obstetrics, and general and orthopedic surgery.

“We have known for some time that our losses are driven primarily by obstetrics claims, but what surprised me most was the significant increase in the value of closed claims between 2005 and 2012,” said Chang.

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Divya Parikh, director of research and risk management at the Physician Insurers Association of America’s (PIAA), concurred with the report’s findings.

She said the PIAA’s national database of medical professional liability claims likewise reflected a steady increase in severity of claims for higher risk procedures such as obstetrics, and general and orthopedic surgery.

“While there has been a leveling off in the frequency of claims overall, it seems intuitive that there would be more interest in claims with bigger payouts attached,” she said.

“Obstetrics and gynecological surgery tend to report the highest number of paid claims on our database and in general they also account for the highest average individual payouts in most cases.”

Chang added that U.S. health care reform could accentuate this trend of increased claims in the long-term as more people begin to gain access to better medical services and coverage.

Alex Wright is a U.K.-based business journalist, who previously was deputy business editor at The Royal Gazette in Bermuda and news editor at the Insurance Times and Global Reinsurance. You can reach him at riskletters@lrp.com.
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Workers' Comp

Making the Grade

Employers make jobs conditional on physical fitness.
By: | March 3, 2014 • 9 min read
Prince William County, VA firefighter Joe Hopper

Taking the time to match a tough job with a worker who can actually do it reduces the potential for costly workplace injuries, employers are now finding.

That concept is leading more employers to study their essential job functions and test the ability of job candidates, particularly when a job requires a new hire to perform functions known to cause injuries.

Increased nationwide hiring, the rising cost of treating workplace injuries and a less physically fit job applicant pool are driving more employers to employ the practice known as post-offer employment testing.

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Post-offer employment testing, or POET, involves simulating the lifting, pushing, pulling and other physical activities that make up a job’s essential functions. Employers are increasingly making employment offers conditional upon a job applicant’s physical ability to perform those activities.

And in another recent trend, employers are expanding the strategy to help determine when to return an established employee to their duties following a workplace injury or a non-occupational disability leave.

“Pre-work screens are not a good strategy if your injuries are coming three years into employment.”

–Drew Bossen, founder, Atlas Ergonomics

At Cooper Standard, the Novi, Mich.-based automobile parts manufacturer, for example, workers desiring a strenuous job first participate in “simulated work.” That helps determine whether they are physically capable of performing the real job, said Patricia Hostine, the company’s global manager of workers’ compensation.

A job requiring continual force to press rubber hose into a mold that forms radiator hoses is desirable because it is one of the better paying tasks the auto parts manufacturer offers, Hostine added.

But it’s also one of the company’s most physically demanding roles.

“It’s very hard work,” Hostine said. “That is where a lot of our injuries are found.”

After performing the simulated work, more applicants decide against taking the job than the company disqualifies. That’s because the testing showed them they couldn’t do the job anyway.

Cooper Standard also requires a functional evaluation, conducted by physical therapists, for any worker who has been away from work either because of a workplace injury or a non-occupational disability.

That requires employees who normally form radiator hoses to show that they are once again physically capable of performing the work after returning from an absence.

Employers that have benefited from conducting POET evaluations for newly hired employees are increasingly adopting a similar worker evaluation as part of their return-to-work programs, several experts said.

“Historically, these [physical evaluations] have been used at the point of offer, at the point of employment,” said Drew Bossen, a physical therapist and founder of Atlas Ergonomics. “But in the last 12 months, we have clients formulating methodologies to use them for return to work as well.”

Data from an initial POET exam can also provide a measured baseline of an employee’s abilities that can be reviewed post injury to help determine when the worker has regained their ability to return to their original job, or whether they should take up other duties.

Using data that way can reduce return-to-work durations by providing support for a doctor’s determination to release their patient.

Most employers using a POET system, however, still use it only to test newly hired workers.

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Evaluating whether potential new hires have the physical ability to perform certain tasks can substantially reduce a company’s injury rate because newer workers typically account for a greater number of injuries than their more-experienced counterparts, POET advocates said.

Data compiled by the National Council on Compensation Insurance Inc. showed that workers on the job less than a year in 2007 accounted for nearly 34 percent of injuries although they made up only 23 percent of the labor force.

“Pre-work screens are not a good strategy if your injuries are coming three years into employment,” Bossen said.

Now, as the U.S. Labor Department reports increased hiring across the country, vendors that provide physical ability testing programs said they are seeing increased demand, which had dropped off during the recession.

“We have seen a big uptick in companies interested in doing this across all industries,” including transportation, mining and health care, said Connie Vaughn-Miller, vice president of business development for BTE Technologies.

The testing may be more beneficial for the most strenuous types of work.

Hostine at Cooper Standard said, for example, that she does not see a cost/benefit advantage for testing workers engaged in light production jobs.

Most employers adopting a POET strategy do so for certain positions and many start with a pilot program, experts said. It’s best to decide which job categories to include in a pilot program by reviewing the company’s claims history to pinpoint where injury frequency and severity are problems. Or, they recommend starting with the company’s most physically demanding jobs, then add others if the pilot results warrant doing so.

“We can’t be a better place to work if we’re hiring people that are not able to perform the job. That’s bad for the company and the associate.”

–Libby Christman, vice president of risk management, Ahold USA.

Making Work Safer

“One of our company promises is to be a better place to work,” said Libby Christman, vice president of risk management at Ahold USA.

“We can’t be a better place to work if we’re hiring people that are not able to perform the job. That’s bad for the company and the associate.”

Ahold is a retailer with about 120,000 employees operating stores under the names of Stop & Shop, Giant Food Stores, Martin’s Food Markets, and Peapod, an online grocery ordering unit.

Late last year, Ahold launched a pilot program for Peapod delivery drivers and for certain strenuous jobs in two warehouses, Christman said. The warehouse jobs require pushing, pulling, bending and lifting.

Since September, Christman has found that about 25 percent of job applicants could not pass its physical demands test. Screening for an employee capable of doing the job, though, not only reduces injuries, but improves productivity.

“We know that obtaining an accurate assessment of an applicant’s physical abilities can help us place him or her in a suitable job, potentially eliminate injuries and ensure efficiency and performance on the job,” Christman said.

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Stepped-up hiring is not the only factor driving employer demand for POET services, observers said.

Employers — continually pushing for more sophisticated safety measures in the face of an aging, more obese, and less physically fit U.S. workforce — are also driving the demand, BTE Technologies’ Vaughn-Miller said.

The Discrimination Question

Employers cannot discriminate when hiring, but they can legally ask a worker to demonstrate that they can meet the physical demands of a job’s essential functions, experts said.

That requires careful analysis, however, to clearly understand a job’s essential functions, so the designed test measures just those functions and does not go beyond evaluating a worker’s ability to perform those specific tasks.

Employers have run afoul of the Equal Employment Opportunity Commission when implementing POET programs that evaluated for abilities beyond those required by the job.

If employees must lift 75 pounds only once a year, and can use a mechanical lift assist to help them when they do so, then testing to see whether a worker can lift 75 pounds is not a fair test, advised Colleen M. Britz, managing director and ergonomics practice leader for Marsh Risk Consulting.

Colleen M. Britz, managing director and ergonomics practice leader for Marsh Risk Consulting

Colleen M. Britz, managing director and ergonomics practice leader, Marsh Risk Consulting

Employers may also face discrimination complaints if they do not require a POET evaluation of everyone seeking a specific job, experts warned.

The tests themselves, however, vary substantially, depending on the vendor or employer providing them.

Some resemble gym equipment with electronic systems for measuring a worker’s strength and agility. Those results can then be compared to computerized measurements of a task. Other tests may be as simple as requiring a worker to lift bags of sand.

“I do consider it a best practice to have a well-designed post-offer employment test that truly is measuring an employee’s capacity to meet physical demands,” Britz said. “It’s a matter, from my perspective, of whether some of the methodologies are truly testing that.”

The wide variation in testing methodology has hampered the collection of data on POET’s impact on overall employee injury rates across industries or multiple employers, experts said.

But individual employers have experienced success, Britz said.

“I don’t know of any company that has stopped doing POET after starting — because they are seeing a positive return on investment,” she added.

A physical abilities test helped Prince William County in Virginia mitigate a double loss driven by candidates seeking to become firefighters.

The county was losing tens of thousands of dollars on hiring and training costs each time a  job candidate washed out of a 26-week training course simply because they could not perform the physical challenges firefighters face in the line of duty, said Tim Keen, assistant chief for the county’s Department of Fire and Rescue.

Because firefighting is a tough job, a lack of physical capability also contributed to recruit training injuries.

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“Not only is it a hard job, but when you add all the gear they wear, their air packs, as well as the functional movements that it takes to accomplish certain tasks, it puts  strains on the body,” Keen said.

Those strains became costly workers’ compensation claims when recruits could not return to an existing job as would occur after an established firefighter suffered an injury, added Lori Gray, the county’s risk management division chief. That forced the county to continue paying workers’ compensation benefits to recruits who did not have a job to return to.

So in 2003, the risk management and fire department helped the county establish its own facility where applicants wanting to become firefighters must first participate in a standardized Candidate Physical Ability Test.

The International Association of Fire Fighters and the International Association of Fire Chiefs developed the CPAT test the county licenses.

The test used by fire departments across the country requires candidates to climb stairs while wearing weight vests, drag hoses and simulated bodies, simulate forcing their way into a building, and conduct other physical feats within a certain time period.

“There are a variety of firefighting tasks they must go through in this course,” Keen said. The course tests their aerobic capabilities, their flexibility, core strength, and upper and lower body fitness.

The test’s standardization ensures it is true to the firefighter’s actual work role and that is legal and fair to all candidates, he added.

“Regardless of age or gender the course is the same for everybody,” he said.

“The test is appropriate so you are not losing people due to injuries, especially early in their careers, Keen said. “It’s the right thing to do, making sure they are physically capable of doing the job.”

The screenings have resulted in fewer recruits lost due to a lack of physical ability.

“We have also seen a huge reduction in the number of injuries that were occurring because recruits are coming in more physically fit to do the job,” Keen said.

POET advocates said the screening results have other applications as well.

In some cases, post-offer physical test results provide employers with a defense in permanent disability cases, Britz said.

In states allowing employers to apportion responsibility for permanent disability claims, for example, the baseline results from the initial post-offer exam can limit an employer’s liability by showing that a worker lost only a certain portion of their functional ability during their employment tenure.

Britz added that she expects to see more large, sophisticated employers counter rising claims severity driven by factors such as aging and obesity by integrating their ergonomics, wellness intervention and physical ability testing programs.

For example, an employee returning from a leave might undergo a fitness for duty exam to evaluate their ability to perform the job without injuring themselves.

Simultaneously, the employee could be referred to the employer’s wellness program to address health-related issues such as high body mass index or to learn exercises that would strengthen certain body parts, such as their shoulders, if frequently used in their daily work routines.

“That is the evolution of post-offer employment testing into fitness-for-duty programs,” she said.

“Not so they lose the job, but to recognize that this person needs to work on shoulder strength. So we create an opportunity to increase shoulder strength. I think that is going to be the wave of the future.”

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Roberto Ceniceros is senior editor at Risk & Insurance and co-chair of the National Workers' Compensation and Disability Conference® & Expo. He can be reached at rceniceros@lrp.com. Read more of his columns and features.
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Sponsored: Rising Medical Solutions

Beware of Medical Hyper-Inflation!

Workers’ comp medical costs are spiking in hidden pockets across the country.
By: | August 4, 2014 • 5 min read
SponsoredContent_Rising

Historically, medical inflation rates nationwide have been fairly consistent. However, data is now showing that medical inflation is not a “one size fits all” phenomenon, with hyperinflation spikes occurring in some locations…but not others.

This geographical conundrum means hyperinflation can occur as narrowly as two hospitals having dramatically different charges on the same street in Anytown, USA. So, uncovering these anomalies is akin to finding the proverbial needle in a haystack.

“In recent years, workers’ compensation saw claim frequency decline, while severity rates went up. This basically means that increased job safety has offset increased medical costs,” explained Jason Beans, CEO of Rising Medical Solutions, a national medical cost management firm. “So, whenever a client’s average cost-per-claim went up, it was almost always caused by catastrophic, outlier-type claims.”

But beginning in 2013 and extending into 2014, Beans said, things changed. “I’ve never seen anything like it in my 20-plus years in this industry.”

SponsoredContent_Rising“Our analytics made it very clear that small pockets around the country are experiencing what could only be described as medical cost hyperinflation. The big spikes in some clients’ claim costs were driven by a broader rise in medical costs, rather than catastrophic claims or severity issues.”
– Jason Beans, CEO, Rising Medical Solutions

Data dive uncovers surprising findings

On a national level, most experts describe medical costs increasing at a moderate annual rate. But, as often is the case, sometimes a macro perspective glosses over a very different situation at a more micro level.

“Our analytics made it very clear that small pockets around the country are experiencing what could only be described as medical cost hyperinflation,” explained Beans. “The big spikes in some clients’ claim costs were driven by a broader rise in medical costs, rather than catastrophic claims or severity issues.”

This conclusion is supported by several key data patterns:

  • Geographic dependency: While many payers operate at the national level, only relatively small, geographically clustered claims showed steep cost increases.
  • Median cost per claim: The median cost per claim, not just the average, increased greatly within these geographic clusters.
  • Hospital associated care: Some clusters saw a large increase in the rates and/or the number of services provided by hospital systems, including their broad array of affiliate locations.
  • Provider rates: Other clusters saw the same hospital/non-hospital based treatment ratios as prior years, but there was a material rate increase for all provider types across the board.
  • Utilization increases: Some clusters also experienced a larger number of services being performed per claim.

One of the most severe examples of hyperinflation came from a large Florida metropolitan area which experienced a combined 47 percent workers’ compensation healthcare inflation rate. Not only was there a dramatic increase in the charge per hospital bill, but utilization was also way up and there was a shift to more services being performed in a costlier hospital system setting.

“The growth of costs in this Florida market stood in stark contrast to neighboring areas where most of our clients’ claim costs were coming down or at least had flat-lined,” Beans said.

An Arizona metropolitan area, on the other hand, experienced a different root cause for their hyperinflation. Regardless of provider type, rates have significantly increased over the past year. For example, one hospital system showed dramatic increases in both charge master rates and utilization. “Even with aggressive discounting, the projected customer impact in 2014 will be an increase of $773,850 from this provider alone,” said Beans.

ACA: Unintended consequences?

So what is going on? According to Beans, a potential driver of these cost spikes could be unintended consequences of the Affordable Care Act (ACA).

First, the ACA may be a contributing factor in recent provider consolidation. While healthcare industry consolidation is not new, the ACA can prompt increased merger and acquisition efforts as hospitals seek to improve financials and healthcare delivery by forming Accountable Care Organizations (ACO). ACOs, the theory goes, can take better advantage of value-based fee arrangements in existing and new markets.

“As hospital systems grow by acquisition, more patients are being brought under hospital pricing structures – which are significantly more expensive than similar services at smaller facilities such as independent ambulatory surgery centers and doctors’ offices,” Beans said.

Unfortunately, there is little evidence that post-consolidation healthcare systems have become more efficient, only more expensive. For example, a recent PwC study reported that hospital IT infrastructure consolidation alone is projected to add 2 percent to hospital costs in 2015.

Another potential ACA consequence is group health insurers may have less incentive to keep medical costs down. An ACA provision requires that 85% of premium in the large group market must be spent on medical care and provider incentive programs, leaving 15% of premium to be allocated towards administration, sales and subsequent profits. “Fifteen percent of $5000 in medical charges is a lot less than 15% of $10,000,” said Beans. “This really limits a group health carrier’s incentive to lower medical costs.”

How do increased group health rates relate to workers’ comp? In some markets, a group health carrier may use its group health rates for their work comp network so any rate increase impacts both business types.

In the end, medical inflation is inconsistent at best, with varying levels driven by differing factors in different locations – a true “needle in the haystack” challenge.

What to do?

Managing these emerging cost threats, whether you have the capabilities internally or utilize a partner, means having the tools to pinpoint hyperinflation and make adjustments. Beans said potential solutions for payers include:

  • Using data analytics: Data availability is at an all-time high. Utilizing analytical tools to spot problem areas is critical for executing cost saving strategies quickly.
  • Moving services out of hospital systems: Programs that direct care away from the hospital setting can substantially reduce costs. For example, Rising’s surgical care program utilizes ambulatory service centers to provide predictable, bundled case rates to payers.
  • Negotiating with providers: Working directly with providers to negotiate bill reductions and prompt payment arrangements is effective in some markets.
  • Underwriting with a micro-focus: For carriers, it is vital that underwriters identify where these pockets of hyperinflation are so they can adjust rates to keep pace with inflation.

“This trend needs to be closely watched,” Beans said. “In the meantime, we will continue to use data to help payers of medical services be smarter shoppers.”

Contact Rising Medical Solutions: info@risingms.com | www.risingms.com

This article was produced by the R&I Brand Studio, a unit of the advertising department of Risk & Insurance, in collaboration with Rising Medical Solutions. The editorial staff of Risk & Insurance had no role in its preparation.


Rising Medical Solutions provides medical cost containment, care management and financial management services to the workers’ compensation, auto, liability and group health markets.
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