June 2009

The personal umbrella is an innovative insurance concept.

It is particularly attractive to professionals with consideration for peace of mind and asset protection.

The personal umbrella is designed exclusively for personal risk exposures & excludes professional liability & business ventures.

Limits of liability are available from $1,000,000 to $10,000,000.

Protection is provided in excess of primary & required limits of liability for the individual’s personal liability [homeowners or renters], auto, watercraft and recreation vehicles.

For the employer, one most important feature is the auto liability risk exposure.  For example if the physician is involved in an at fault catastrophic auto accident while rushing to the hospital for an emergency call; claimants attorney files a complaint naming your organization as well as the physician personally…the physicians auto and umbrella are primary and in excess is the employers non-owned auto liability and, possibly, an entity umbrella policy.

Some umbrella providers will offer increased uninsured motorist limits and personal employment practices liability.

Please call for advice.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

Bloomington Herald-Times July 2, 2010  The Monroe County Indiana Court has awarded $1,250,000 for circumstances arising out of an incident that occurred in August 2003.

“Inadvertently disclosing in a collection action that the patient was HIV positive”

The case is M.O. v IMA Inc. (53001-0604-PL-00722).

The physician’s professional liability insuring company has paid their policy limit of $250,000.

The Indiana Patients Compensation Fund is appealing their $1,000,000 portion of the verdict and contends protection is not provided by the Indiana Medical Malpractice Act.

• Protection of $1,000,000 is currently available including:
  • Defense coverage for Medicare / Medicaid Audit
  • Qui Tam Plaintiff (Federal False Claims Act)
  • Unintentional Billing Errors & Omission
  • Unintentional Release of Medical or Financial Data
  • HIPAA Proceeding – Governmental
  • EMTALA Proceeding
  • Stark Violations
  • Breach of Computers or Network Security
  • Patient Notification / Credit Monitoring
  • Data Recovery
  • Multimedia Coverage
  • Voluntary Self-Disclosure Allowed

• In addition many new coverage enhancements are or soon may be available from physician professional liability and directors & officers * liability providers of insurance.

*     Directors & Officers • Employment Practices • Fiduciary • Fidelity • Regulatory • Cyber • Executive Risk

John R MacLennan CPCU RPLU / john@maclennanbain.com / 219-464-0100 x 16

Ross W MacLennan CPCU / ross@maclennanbain.com / 219-464-0100 x 17

Tammy Javor / tammy@maclennanbain.com / 219-464-0100 x 21

May 2009

• The Indiana Medical Malpractice Act does not prohibit arbitration of professional liability claims however arbitration is considered to be inconsistent with intent of the Act.
  
• Does arbitration lower costs or reduce losses?
  
  There is no evidence or experience that arbitration will reduce costs for the insurance company and, consequently, it will not reduce premiums, conversely arbitration can be expensive.
• Loss of rights and potential conflicts with co-defendants.
  
  Arbitration agreements create binding contractual obligations. 
  
  In arbitration, all parties waive their rights to a trial by jury, judicial appellate review, use of the Rules of Civil Procedure, and use of the Rules of Evidence.  The arbitrator has virtually unlimited discretion to allow the submission and consideration of any evidence regardless of its relevance or prejudicial effect, and the decision of the arbitrator is almost always final.  Moreover, arbitration could cause conflict with codefendant doctors and hospitals who are litigating the same claim.
  
  In addition, it could potentially conflict with the Indiana Medical Malpractice Act and Indiana Patients Compensation Fund. 
• Protection through insurance.
• Your professional liability insurance policy pays the full cost of defending any claim or suit for which coverage exists, generally without limits.  It also pays any covered loss up to the policy’s limits of coverage.  In addition, you are afforded the capitation limit $1,250,000 of the Indiana Medical Malpractice Act.

You are encouraged to consult your attorney.

Source: ProAssurance & Indiana Department of Insurance

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

July 2009

Any health care provider that uses an assumed business name must state the assumed business name on the certificate of coverage filed with the Department of Insurance for the assumed business name to be included in the health care provider’s status as a qualified provider as defined by IC 34-18-2-24.5. (Department of Insurance; 760 IAC 1-21-10)

Examples:

• Family Practice LLC… Good Health Clinic
• Thomas Smith MD… Facial Plastic Surgery

It is essential that the assumed business name appear on your policy of professional liability insurance and that your insurance company notify the Indiana Patients Compensation Fund.

In a January 2008 ruling from the IDOI, notification and filing is required of both a registered and unregistered assumed business name.

It is recommended that your assumed business name be registered with the Indiana Secretary of State; please consult with your attorney.


John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

June 2009

Caution is the best advice with consideration for the challenges of canceling a professional healthcare policy of insurance.

The Indiana Medical Malpractice Act requires 30 days advance notice for a midterm cancellation.  Indiana Statutory Code 34-18-13-4:

A termination of this policy by cancellation initiated by the insured or the insurance company is not effective for patients claiming against the insured covered by the policy, unless at least thirty (30) days before the taking effect of the cancellation, a written notice giving the date upon which termination becomes commissioner’s office.

Depending on the reason for cancellation it may result in a pro rata or short rate premium return.

A short rate return is determined by company underwriting guidelines, will vary by company and will be a minimum of 10% less as compared with a pro rata return.

An exception is IRMIA; their premium cancellation return is pro rata.

The Indiana Patients Compensation Fund surcharge cancellation return is pro rata.

In addition if protection is provided on claims made form it is essential to make prompt arrangements in accordance with insurance company underwriting requirements for the reporting form endorsement or "tail", including payment of the premium and $100 Indiana Patients Compensation Fund surcharge.

Please call for advice.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

May 2009

We recommend for the consideration of CNS’s, LPN’S, NP’S, RN’S and other paramedics.

Protection is provided on an occurrence form in compliance with the Indiana Medical Malpractice Act.

Chicago enjoys an AM Best Financial Strength Rating of A++ / Superior & is a member of the Allianz Group of Insurance Companies; the policy is administered by Marsh Affinity / Seabury Smith.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

Lloyd’s of London, in the 1960’s introduced a restrictive claims made form, St Paul, in 1975, introduced a modified claims made form, however, until 2003 Indiana physicians, with few exceptions, remained insured on an occurrence form.

On July 1, 2003, ProAssurance (endorsed by the Indiana State Medical Association), introduced claims made Plus, an enhanced form, ProAssurance, also, offers a modified claims made form.

The principle difference between the ProAssurance enhanced claims made Plus and modified claims made form is a waiver of premium for the reporting form (“tail”) if the physician moves the practice permanently (3 years) out of state.

Policy conditions for both the ProAssurance enhanced and modified form contain a waiver of the “tail” premium if termination results from permanent retirement (modified form requires continuous insurance for 5 years), permanent disability or death.

All other ProAssurance conditions of termination require payment of a premium for the “tail”; an exception would be if protection is continued with a new policy on a claims made form with the original claims made retroactive date.

Medical Protective offers the option of both occurrence and modified claims made.

Excess & Surplus lines companies, which we do not recommend, continue to offer a restrictive claims made policy with unfavorable policy conditions and limitations.

Failure to make proper arrangements for the “tail” will result in no protection for claims occurring during the retroactive period that are made following the policy termination.

If a “tail” is not purchased, underwriters will amend the corporation professional liability policy to exclude vicarious protection for the actions of the terminating employee.

It is recommended that employment contracts be amended to provide who is responsible for payment of the “tail” premium.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

May 2009

Occurrence is the traditional form of professional liability insurance.

The Occurrence form insures professional services provided while the policy is in force regardless of when the claim is made.

The Claims Made form insures professional services provided during the term of the policy; however, only if the claim is made while the policy is in force.

When a Claims Made policy is cancelled, it may be necessary to purchase the reporting form endorsement (tail) in order to provide protection for future claims.

The reporting form endorsement may also be available from the succeeding insurance company; however, only if practice was limited to Indiana and the policy was in compliance with the Indiana Medical Malpractice Act.

The purchase of the “tail” may not be necessary, depending on policy conditions, if the cancellation is a result of death, disability or retirement.

A Claims made policy may also provide some premium saving advantages depending upon individual circumstances.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

July  2009

• Is the trial being conducted under the auspices of an Institutional Review Board; if so confirm the name of the IRB and the affiliated hospital.
• Will the trial include any of the following types of patients: maternity, mentally or developmentally disabled, prisoners, minors, or elderly?
• How many clinical trials annually?
• Is there a written contract with a pharmaceutical company?
• Professional liability contractual liability hold harmless or indemnification requests are uninsurable.
• Submit a complete copy of the contract and a copy of the consent form.
• Legal jurisdiction must be in Indiana.
• Limits of professional liability may be requested in excess of Indiana Medical Malpractice Act; increase limits maybe available.
• Underwriting and risk management advice will follow upon receipt of this information.    
• Consult with your attorney

Source: ProAssurance

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

May 2009

• Consult with your attorney and CPA
• Advance notice to all concerned
• Advise your patients regarding release and & transfer of records
• Refer your patients to a new provider
• Retention of medical records
• Notify appropriate license authorities
• Cancel your Professional Liability Insurance; if your professional liability is on a claims made form…request the “tail”/ reporting endorsement

Insurance company risk management specialists will be pleased to provide you with additional information.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

With increasing frequency physicians are being asked to enter into collaborative agreements with nurse practioner’s and other healthcare provider’s.

The physicians policy of insurance provides professional liability protection for the vicarious protection of the physician.

However, the physicians policy and the Indiana Medical Malpractice Act does not provide protection for the collaborative provider.

Thus, it is essential to secure evidence of insurance from the provider.

We recommend that your attorney review the contractual conditions of the agreement.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

May 2009

• It is estimated that as many as 20%, or 50 million members, of the USA population speak a language other than English at home.
• Federal Government regulations mandate that healthcare providers facilitate communication with patients affected by language barriers.
• Poor patient compliance and less successful healthcare outcomes occur more frequently in populations unable to participate in the give-and-take of diagnostic and treatment planning discussions.
• Public health policy and the courts stipulate that individuals have the right to receive clinical information and to ask questions about proposed treatment as a basis for valid, and informed consent for medical or dental care.

Services are also available for interpretation, hearing-impaired, sight impaired and document translation.

A recommended service is DT Interpretating at www.interlanguagephone.com

Source:  Medical Protective

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

May 2009

This Indiana legislation took effect July 1, 2006 and includes the following information:

• This chapter applies to a cause of action in tort, including a medical malpractice action.
• Communication of sympathy means a statement, a gesture, an act, conduct or a writing that expresses; sympathy, apology or a general sense of benevolence.
• A court may not admit into evidence a communication of sympathy that relates to causing or contributing to a loss, an injury, pain, suffering a death or damage to property.
• A court may admit a statement of fault into evidence including a statement of fault that is part of a communication of sympathy, if otherwise admissible under Indiana Rules of Evidence.

It is recommended that you consult with your attorney and a representative of your insurance company prior to communicating sympathy.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

July 2009

Following are examples of incidents that may not be considered to be professional liability by the insuring company or may not be within the scope of the Indiana Medical Malpractice Act:

• Indiana courts rule the patient injury is not a medical incident.
• The Indiana Patients Compensation Fund is insolvent.
• The Indiana Medical Malpractice Act is declared unconstitutional.
• Incident does not involve patient injury.
• Services provided by a Medical Review Officer.
• Services provided by a Medical Director.
• Contractual hold harmless and indemnification agreements.
• Conflicts with a Directors & Officers Liability policy.
• Claims arising out of privileges and credentials.
• Claims occurring where a state other than Indiana declares jurisdiction.
• The individual physician maintains an out of state residence and/or medical license and treats patients residing in that state in his Indiana offices.
• Patient transportation across state line.
• Out of state activities such as referrals, advertising and prescription services.
• Injuries to a patient where the claimant's attorney alleges it is not a Professional Liability i.e., General Liability policies exclude injuries arising out of patient services.
• Infection of patient resulting from housekeeping.
• Failure to warn a third party regarding the potential harm of a psychiatric patient.
• Malfunction of equipment.
• Hiring of a negligent employee leads to patient injury.
• Conflicts with federal statutes…Federal Tort Act
• Patient Recreational Activity.
• Patient Kidnapping.

One of the potential solutions to some of these challenges is to maintain a $1,000,000 or more excess contingent professional liability policy that will supplement the primary $250,000 per claim limit currently maintained in compliance with the Indiana Medical Malpractice Act.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

August 2009

Other healthcare providers and managed care companies may request that you agree   to written contractual agreements containing professional contractual liability indemnification, hold harmless and additional insured agreements that have the expressed purpose of transferring the burden of their professional liability risk, including the cost of defense to you.

Standard policies of individual Professional Liability insurance specifically EXCLUDE liability assumed by any insured under any contract or agreement whether oral, written or implied except to the extent that coverage for such agreement would be available to the insured in the absence of such contract or agreement.

In addition, the Indiana Medical Malpractice Act makes no provision to recognize professional contractual liability agreements.

Our recommendation is that you not enter into any contractual agreement containing a professional liability indemnification, hold harmless or additional insured agreement.

Other common contractual complications include requests for increased liability limits, non-recognition of the IMMA and a requirement to be governed by the laws of a state other than Indiana.

Please submit contracts to us for insurance and risk management review and consult with your attorney.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

May 2009

“The definition of Indiana Health Care Corporation includes these elements to qualify:

• As one of its functions, it provides health care;
• Is organized or registered under state law; and
• Is determined to be eligible for coverage as health care provider under this article for its health care function.

We (Indiana Department of Insurance) interpret, registered under state law, to mean organized or registered under Indiana law, although there has never been a case interpreting it.

Thus, the Indiana Patient Compensation Fund’s position is that out of state corporations must file with the Indiana Secretary of State before qualifying with the Indiana Patients Compensation Fund.”

Source:  Tina Korty/ Indiana Department of Insurance/ June 2008

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

May 2009

Professional Corporations, Partnerships and Limited Liability Corporations are insurable under the statutory provisions of our unique Indiana Patients Compensation Act.

The Act recognizes the professional corporation and the corporation is entitled to all the benefits of the Act; professional liability insurance will pay indemnification plus the cost of defense.

The corporation must be registered with the Indiana Secretary of State and be a qualified healthcare provider.

The professional corporation can be named as a defendant in a medical malpractice suit.

The professional corporation’s policy of insurance extends to provide protection for the corporation arising out of the activities of all employees including paramedics, which includes any person licensed, certified or authorized to deliver advanced level health care in the absence of direct supervision by a licensed physician.

Please advise us of your employment of a paramedic, as it may be necessary to complete an application, secure underwriting approval and amend your policy of insurance.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

Cyber Insurance and other enhancements with limits of $1,000,000 are available subject to application and additional premium; please call for advice.

Protection will be added to your professional liability policy of insurance at renewal in 2011 without additional premium.

Medical Protective coverage will include up to $50,000 total annual aggregate for:

Network Security and Privacy Insurance (per claim limit up to $50,000) Includes third party liability coverage for allegations of privacy violations of both electronic and paper records, as well as failure to prevent transmission of malicious software code.

Regulatory Fines and Penalties Insurance (per claim limit up to $50,000) Includes coverage for fines/penalties for violations of privacy regulations including but not limited to HIPAA, Gramm Leach Bliley and HITECH.

Patient Notification and Credit Monitoring Costs Insurance (per claim limit up to $50,000) Includes all reasonable legal, public relations, advertising, IT forensic, credit monitoring and postage expenses incurred by the insured for notifying a third party of a privacy breach.

 Data Recovery Costs Insurance (per claim limit up to $5,000) Includes all reasonable and necessary sums required to recover and/or replace data that is compromised, damaged, lost, erased or corrupted by non-property perils.

Corporate Annual Aggregate Limit Will range from $50,000 to $500,000 contingent on the number of physicians in the group.

John R MacLennan CPCU RPLU / john@maclennanbain.com / 219 464 0100 x 16

Tammy Javor / tammy@maclennanbain.com / 219 464 0100 x 21

Cyber Insurance and other enhancements with limits increased are available subject to application and additional premium/ $1,000,000 limit annual premium $1,125.

Protection will be added to your professional liability policy of insurance commencing with renewal effective June 1, 2011 without additional premium; protection will include up to $50,000 total annual aggregate for:

Network Security and Privacy Insurance (per claim limit $50,000)Includes third party liability coverage for allegations of privacy violations of both electronic and paper records, as well as failure to prevent certain defined consequences from unauthorized use of your computer system, including transmission of maliciu of malicious software code.

Regulatory Fines and Penalties Insurance (per claim limit $50,000)Includes coverage for fines/penalties for violations of privacy regulations including but not limited to HIPAA, Gramm Leach Bliley and HITECH and federal and state consumer credit reporting laws.

Patient Notification and Credit Monitoring Costs Insurance (per claim limit $50,000)Includes all reasonable and necessary legal, public relations, advertising, IT forensic, credit monitoring and postage expenses incurred by the insured for notifying a third party of a privacy breach.

Data Recovery Costs Insurance (per claim limit up to $5,000)Includes all reasonable and necessary sums required to recover and/or replace data that is compromised, damaged, lost, erased or corrupted by non-property perils.

Corporate Annual Aggregate Limit Will range from $50,000 to $250,000 contingent on the number of physicians.

John R MacLennan CPCU RPLU / john@maclennanbain.com / 219 464 0100 x 16

Tammy M Javor / tammy@maclennanbain.com / 219 464 0100 x 21

Jill E MacLennan / jill@maclennanbain.com / 219 464 0100 x11

May 2009

This federal pilot project encourages the use of electronic systems for prescriptions in an effort to deliver safer and more efficient patient care while also cutting costs.

Federal officials think e-prescribing – where prescriptions are generated through an automated data-entry process utilizing special software and a network linked to pharmacies – could help save up to $154 million over the next five years.

Indiana currently lags behind the states of Illinois, Michigan, Ohio and Kentucky and national averages.

Indiana ranked 33rd in the number of e-prescriptions in a 2007 Safe-RX survey by pharmaceutical industry technology firm SureScripts-RX Hub.

Purdue’s PharmaTAP, an effort launched with funding from the Lilly Endowment and led by the university’s Technical Assistance Program, also is focused on helping address Indiana’s e-prescribing needs.

Change, as in any industry, is hard especially in an arena that constitutes one of the largest paper-based processes in the United States.

When we look back a decade from now, hopefully, we will see this federal e-prescribing pilot project as an important piece of the puzzle that paved the way for a broader reform of this nation’s health-care system.

Source:   Vincent Duffy

Vincent Duffy is a Purdue professor of industrial engineering and researcher at Discovery Park’s Regenstrief Center for Healthcare Engineering.

Note:  It is not anticipated that premium credits will be offered for e-prescribing.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

May 2009

What insurance companies do you recommend?  ProAssurance, Medical Protective and IRMIA

What are the important considerations in the selection of a professional liability insurance company? Long term stability and an AM Best Financial Strength Rating  of A-/ Excellent or better

When did these companies commence offering service in Indiana?
ProAssurance…1982; Medical Protective…1899 and IRMIA…1975

What are their financial ratings?
ProAssurance A+/ Excellent; Medical Protective A++/ Superior; IRMIA/ State of Indiana

How can I reduce my premium?
Visit www.mbiprofessional.com library for recommendations

What is the foundation of the Indiana Professional Liability marketplace?
The Indiana Medical Malpractice Act of July 1, 1975

What are the limits of liability provided by a combination of insurance and the Indiana Patients
Compensation Fund?  The maximum limit of recovery is $1,250,000

How long will it take to process an application and secure coverage? 10 days is normal

Is coverage available on both a claims made and occurrence form?  Yes…depending on the company

Are premium’s payables in advance for the full annual term?  Yes

May I pay my premium in installments?  Yes, with contingencies

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessionals.com

By Jeff Parrott/ South Bend Tribune/ May 10, 2008

“The Indiana Court of Appeals has ruled that cosmetic laser hair removal, a growing trend nationally, is not “health care”, clearing the way for two lawsuits to proceed.

The claimants sued over burns and permanent disfigurement they say suffered during cosmetic laser hair removal.  Specifically, they claim a nurse who performed the procedures, without a doctor present, had set the laser device too high.

A request was submitted to dismiss the suit, arguing the procedures were medical in nature and therefore were subject to Indiana’s Medical Malpractice Act. 

Such a finding would have required the plaintiffs to file their complaints with a three-physician “medical review” panel, under the auspices of the Indiana Department of Insurance/ Indiana Medical Malpractice Act.  If the panel had found their claims were not frivolous they could have filed suit in court, the process’ all claims of medical malpractice follow in Indiana.

The defense attorney argued the laser treatment constitutes health care because it was performed by a registered nurse, used technology that required training and skill and could have resulted in burning and scarring if not administered properly.

The appeals court affirmed the ruling, primarily because physicians were not involved in treatment, and the operator of the laser machine was not required to be a health care worker or possess health care credentials.

“The claimants could have legally obtained the same treatment somewhere other than a health care facility, and could have legally done so without the assistance or participation of someone with valid health care licensing or certification credentials.”  The three judge appellate panel wrote, “In those respects, the laser hair removal treatment is analogous to tattooing or tanning, both of which alter the body for cosmetic purposes, but neither of which need be performed by licensed or certified physician or health care professional.”

Being allowed to pursue the cases as simple negligence lawsuits also exempts them from $1,250,000 damages capitation, which Indiana medical malpractice cases are subject, plaintiffs attorney said, and noting he has no idea whether his clients’ damages will be that high.”

• $1,000,000 Excess Contingent Professional Liability is a possible solution; ProAssurance & Medical Protective offer protection as an option.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

May 2009

A hospitalist is a physician who is specifically trained to manage patient care while the patient is hospitalized.

The hospitalist has developed a great deal of experience in the unique aspects of a patient’s needs during the hospital stay and because they spend most or all of their practice in the hospital, they are more readily available for the patient.

Hospitalists normally will have the specialty of  Family Practice or Internal Medicine.

Hospitalist physicians will care for the patient from admission through discharge.

They will regularly communicate appropriate information to the primary care physician and specialists during the hospital stay.

The hospitalists do not replace the primary care or specialist physicians and will not provide follow-up care upon discharge.

Hospitalists will allow the other physicians to be more available in an office or clinic setting for continuing patient care.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

May 2009

• Professional, including Indiana Patient Compensation Fund, Excess Contingent, General, Pollution & Umbrella Liability.
• Additional insurance considerations:
  

  Auto	Fidelity Bond
  Aviation	Fiduciary
  Crime	Executive Risk
  Directors & Officers	Property & Business Income
  Employment Practices	Workers Compensation

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

October 2009

There are currently two statutory immunity provisions in Indiana.

Under IC 34-30-12-1, a person (not limited to a physician) "who comes upon the scene of an emergency or accident" and "gratuitously renders emergency care at the scene" (i.e., not at a health care facility) is immune from civil liability for any personal injury that results from "(1) any act or omission by the person in rendering the emergency care; or, (2) any act or failure to provide or arrange for further medial treatment or care for the injured person." This immunity does not apply to acts or omissions that amount to gross negligence, or willful or wanton misconduct.

Under IC 34-30-13-1, a person is immune from civil liability for any act or omission relating to the provision of health care services if that person: (1) has a license to provide health care services in Indiana; (2) voluntarily provides health care services within the scope of his/her licensure; and (3) provides the health care services at a medical clinic or health care facility without charge and purchases professional liability insurance.

There are also regulations and a significant amount of case law surrounding the Good Samaritan immunity.

The above is specific to Indiana.  If a provider renders first aid at the scene of an accident in another state, we would have to look at the other state's immunity provisions to determine what is allowed.

Source:  ProAssurance

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

July 2009

This is a complicated topic because of the differences in Indiana statutory law vs. common law, occurrence vs. claims made, the requirements of the Indiana Medical Malpractice Act, variations in the statutes of limitations and “cultural differences”.

Other considerations include the state of residence of the physician, the number of hours practiced in each state, variation in services provided, credentialing requirements of hospitals and limits of liability.

A current trend indicates that some insurance companies are now prepared to provide insurance in multiple states with premium consideration for number of hours in each state.

If you live out of state and practice in Indiana, we recommend you consider $1,000,000 Contingent Excess Professional Liability; i.e., the courts in the state of your residence may declare jurisdiction if you treat a resident of that state in Indiana; thus potentially voiding the Indiana Medical Malpractice Act.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessionals.com

Following is an outline of claims that may not be insured within the scope of the Indiana Medical Malpractice Act:

• Indiana courts rule patient injury is not a medical incident.
• The Indiana Patients Compensation Fund is insolvent.
• The Act is declared unconstitutional.
• Incidents not involving patient injury.
• Contractual hold harmless and indemnification agreements.
• Claims arising out of privileges and credentials and other conflicts with Directors & Officers Liability policies.
• Claims occurring where a state other than Indiana declares jurisdiction and does not recognize the Act.
• Patient Transfer across state line.
• Injuries to a patient where the claimant’s attorney alleges it is not a Professional Liability claim, i.e., General Liability; excludes injuries arising out of patient services.
• Infection of patient resulting from housekeeping.
• Failure to warn an identifiable third party regarding the potential harm of a psychiatric patient.
• Malfunction of equipment.
• Hiring of a negligent employee leads to patient injury.
• Product liability claims.
• Out of state activities such as referrals, advertising and prescription services.
• Conflicts with federal statutes.
• Patient Recreational Activity.
• Patient Kidnapping.
• Some, but not all activities of a Medical Review Officer.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

July 2009

On July 1, 1975 with the combined leadership of Governor Otis R Brown MD, State Senator Adam Benjamin, Jr and the Indiana State Medical Association the Indiana Legislature enacted the Indiana Medical Malpractice Act.

The Indiana Department of Insurance continues to have a significant and favorable influence on the stability and administration of professional liability for Indiana health care providers.

• 1975
  • Insurance limit $100,000/300,000
  • Indiana Patients Compensation Fund $400,000
  • Claim capitation limit $500,000
  • Fund Surcharge 10% of insurance premium; increased by 1999 to 150%
  • Two year statute of limitations commencing at age 6
  • IRMIA (Indiana Residual Malpractice Insurance Authority)
• 1990
  • Increase of Fund to $650,000 and capitation to $750,000
• 1999
  • Insurance limits increase to $250,000/500,000
  • Fund $1,000,000
  • Capitation $1,250,000
  • Fund surcharge computation by specialty for physicians
• 2008
  • 19.1% decrease of Fund Surcharge for physicians
  • Registered and unregistered assumed business names required to be insured
  • Physicians on claims made form prior to July 1,1999…Fund reduced to $100
  • NP’s, CRNA’s, NM’s, OD’s, DPM’s employed by physicians required to maintain separate limits to comply with the Indiana Medical Malpractice Act
• 2009
  • Fund decreased .005% for physicians

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

                                                                                 February 2011

On July 1, 1975 with the combined leadership of Governor Otis R Brown MD, State Senator Adam Benjamin, Jr and the Indiana State Medical Association the Indiana Legislature enacted the Indiana Medical Malpractice Act.

The Indiana Department of Insurance continues to h

February 2011

On July 1, 1975 with the combined leadership of Governor Otis R Brown MD, State Senator Adam Benjamin, Jr and the Indiana State Medical Association the Indiana Legislature enacted the Indiana Medical Malpractice Act.

The Indiana Department of Insurance continues to have a significant and favorable influence on the stability and administration of professional liability for Indiana health care providers.

• 1975
  • Insurance limit $100,000/300,000
  • Indiana Patients Compensation Fund $400,000
  • Claim capitation limit $500,000
  • Fund Surcharge 10% of insurance premium; increased by 1999 to 150%
  • Two year statute of limitations commencing at age 6
  • IRMIA (Indiana Residual Malpractice Insurance Authority)
• 1990
  • Increase of Fund to $650,000 and capitation to $750,000
• 1999
  • Insurance limits increase to $250,000/500,000
  • Fund $1,000,000
  • Capitation $1,250,000
  • Fund surcharge computation by specialty for physicians
• 2008
  • 19.1% decrease of Fund Surcharge for physicians
  • Registered and unregistered assumed business names required to be insured
  • Physicians on claims made form prior to July 1,1999…Fund reduced to $100
  • NP’s, CRNA’s, NM’s, OD’s, DPM’s employed by physicians required to maintain separate limits to comply with the Indiana Medical Malpractice Act
• 2009
  • Fund decreased .005% for physicians
• 2010
  • Fund decreased 17.7% for physicians

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

ave a significant and favorable influence on the stability and administration of professional liability for Indiana health care providers.

• 1975
  • Insurance limit $100,000/300,000
  • Indiana Patients Compensation Fund $400,000
  • Claim capitation limit $500,000
  • Fund Surcharge 10% of insurance premium; increased by 1999 to 150%
  • Two year statute of limitations commencing at age 6
  • IRMIA (Indiana Residual Malpractice Insurance Authority)

• 1990
  • Increase of Fund to $650,000 and capitation to $750,000

• 1999
  • Insurance limits increase to $250,000/500,000
  • Fund $1,000,000
  • Capitation $1,250,000
  • Fund surcharge computation by specialty for physicians

• 2008
  • 19.1% decrease of Fund Surcharge for physicians
  • Registered and unregistered assumed business names required to be insured
  • Physicians on claims made form prior to July 1,1999…Fund reduced to $100
  • NP’s, CRNA’s, NM’s, OD’s, DPM’s employed by physicians required to maintain separate limits to comply with the Indiana Medical Malpractice Act

• 2009
  • Fund decreased .005% for physicians

• 2010
  • Fund decreased 17.7% for physicians

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

On July 1, 1975 with the combined leadership of Governor Otis R Brown MD, State Senator Adam Benjamin, Jr and the Indiana State Medical Association the Indiana Legislature enacted the Indiana Medical Malpractice Act.

The Indiana Department of Insurance continues to have a significant and favorable influence on the stability and administration of professional liability for Indiana health care providers.

• 1975
  • Insurance limit $100,000/300,000
  • Indiana Patients Compensation Fund $400,000
  • Claim capitation limit $500,000
  • Fund Surcharge 10% of insurance premium; increased by 1999 to 150%
  • Two year statute of limitations commencing at age 6
  • IRMIA (Indiana Residual Malpractice Insurance Authority)
• 1990
  • Increase of Fund to $650,000 and capitation to $750,000
• 1999
  • Insurance limits increase to $250,000/500,000
  • Fund $1,000,000
  • Capitation $1,250,000
  • Fund surcharge computation by specialty for physicians
• 2008
  • 19.1% decrease of Fund Surcharge for physicians
  • Registered and unregistered assumed business names required to be insured
  • Physicians on claims made form prior to July 1,1999…Fund reduced to $100
  • NP’s, CRNA’s, NM’s, OD’s, DPM’s employed by physicians required to maintain separate limits to comply with the Indiana Medical Malpractice Act
• 2009
  • Fund decreased .005% for physicians
• 2010
  • Fund decreased 17.7% for physicians

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

May 2009

Following is an outline of contingent professional liability claims that may not be insured within the scope of the Indiana Medical Malpractice Act:

• Indiana courts rule patient injury is not a medical incident.
• The Indiana Patients Compensation Fund is insolvent.
• The Act is declared unconstitutional.
• Incidents not involving patient injury.
• Contractual hold harmless and indemnification agreements.
• Claims arising out of privileges and credentials and other conflicts with Directors & Officers Liability policies.
• Claims occurring where a state other than Indiana declares jurisdiction and does not recognize the Act.
• Patient Transfer across state line.
• Injuries to a patient where the claimant’s attorney alleges it is not a Professional Liability claim, i.e., General Liability; excludes injuries arising out of patient services.
• Infection of patient resulting from housekeeping.
• Failure to warn an identifiable third party regarding the potential harm of a psychiatric patient.
• Malfunction of equipment.
• Hiring of a negligent employee leads to patient injury.
• Product liability claims.
• Out of state activities such as referrals, advertising and prescription services.
• Conflicts with federal statutes.
• Patient Recreational Activity.
• Patient Kidnapping.
• Some, but not all activities of a Medical Review Officer.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

This unique Indiana Professional Liability statute:  I.C. Title 34, Section 18 took effect July 1, 1975 and was most recently enhanced July 1, 1999.

Insurance in combination with the Indiana Medical Malpractice Act (IMMA) provides:

• $250,000 each claim and $750,000 annual aggregate plus the cost of defense.
• The limit of insurance is supplemented by the Indiana Patients Compensation Fund (IPCF) in the amount of $1,000,000 for a statutory capitation of $1,250,000.
• The annual aggregate for hospitals is determined by the number of beds and is $5,000,000 or $7,500,000.
• If the claim is not within the authority of the IMMA $250,000/750,000 will be the limit of protection.
• A potential solution for claims not covered by the IMMA is $1,000,000 excess contingent liability; protection is available as an option from some companies.

The IPCF surcharge for physicians, Independent Ancillary Providers (IAP’s: CNS, CRNA, DDS, CNM, NP, OD, PA, DPM & PhD) and hospitals is based on an IMMA indexed formula.

The IPCF surcharge for all other classifications of providers is 100% of the premium.

Payment of the IPCF surcharge and filing of the Certificate of Insurance is required with the IMMA within 30 days of the effective date of insurance.

The IMMA will not recognize contractual indemnification and hold harmless agreements.

Statute of Limitations is two years from the date of occurrence; for minors two years after age six.

Protection under the IMMA is not provided for services performed outside the State of Indiana.

The IMMA also established the Indiana Residual Malpractice Insurance Authority (IRMIA)

The insurance company may settle a claim without the consent of the insured when the Medical Review Panel (MRP) has issued a unanimous opinion that the insured failed to comply with the appropriate standard of care.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

This unique statue took effect in 1975 under the leadership of Governor Otis R Bowen MD.

• The State of Indiana / Patients Compensation Fund / Department of Insurance administrates a $1,000,000 limit of liability protection which complements the primary insurance provided by the insuring company of $ 250,000 each occurrence & $ 750,000 annual aggregate plus the cost of defense.
• The current maximum liability award is $1,250,000.
• The Patients Compensation Fund surcharge for physicians, dentists and ancillary healthcare providers is determined by classification and hours of practice per week.
• Statute of limitations is two years and for minors it is two years after age six.
• Claims are first submitted  to a Medical Review Panel.
• Indiana Residual Malpractice Insurance Authority (IRMIA) was established as an alternative professional liability market.
• The long term positive outcome includes:

                         Competitive premiums & stable market place

                         High percentage of all claims resolved with no indemnification payment.

                         Occurrence and claims made forms of insurance are both available

                         Positive influence & cooperation of Indiana Department of Insurance.

John R MacLennan CPCU RPLU / john@maclennanbain.com / 219 464 0100 x16

We have received updated advice from the Indiana Department of Insurance (IDOI) as regards providing paramedical & staff employees protection in compliance with the Indiana Patients Compensation Fund (IPCF).

The following healthcare providers are required by the IDOI & IPCF to maintain a separate policy of insurance for compliance: CNS, CRNA, DDS, CNM, NP, OD, PA, DPM & PhD

The IDOI has specified in Section 8: 760 IAC 1-21-10 Scope of coverage:

(e) Qualification for individual health care providers may not include employees. Including a “doing business as” on an IPCF certificate of insurance does not allow an individual to include employees. However, nothing in this subsection shall prevent a corporation, sole proprietorship, partnership, or any other entity organized or registered under state law from including employees in the entity’s qualification.

The IDOI has provided clarification and confirms that Rule 21 DOES NOT require a health care provider to incorporate to cover employees. 

If you choose not to incorporate you can register as a sole proprietorship with the County Recorder in the county of your practice.

The proof of registration will be sufficient per the IDOI to deem practice employees as qualified providers under the IPCF.

Following is a link to the Indiana Secretary of State’s web site, which provides information about registering an informal business association:  http://www.in.gov/sos/business/3786.htm

If protection is desired it will require an application and minimum premium.

John R MacLennan CPCU, RPLU/ john@maclennanbain.com/ mbiprofessional.com

Effective March 1, 2012 the Indiana Department of Insurance has decreased the Surcharge 10.2.%

The enhancement will take effect on the renewal of insurance in 2012 or 2013.

The Fund provides a $1,000,000 limit of liability per claim in excess of $250,000 provided by your insurance company, with a per claim capitation limit of $1,250,000.

John R MacLennan CPCU RPLU / john@maclennanbain.com / mbiprofessional.com

• What is the single most important consideration in the selection of a professional liability insurance company & why?   AM BEST FINANCIAL STRENGTH RATING (IN THE RANGE OF A- / EXCELLENT TO A++ /  SUPERIOR); WITH CONSIDERATION FOR THE LONG TERM COMPLICATIONS OF A PROFESSIONAL LIABILTY CLAIM & THE REQUIRED SUPERIOR QUALITY OF DEFENSE.

• Cyber liability… do my current policies insure & if not what protection is available? LIMITED PROTECTION OF $50,000 WITHOUT ADDITIONAL PREMIUM IS OR WILL SOON BE PROVIDED BY MEDICAL PROTECTIVE & PROASSURANCE; ENHANCED PROTECTION IS AVAILABLE WITH APPLICATION AND ADDITIONAL PREMIUM.

• Are legal expenses of regulatory audit investigations insured? LIMITED DEFENSE PROTECTION OF $25,000  WITHOUT ADDITIONAL PREMIUM IS PROVIDED BY MEDICAL PROTECTIVE & PROASSURANCE; ENHANCED PROTECTION IS AVAILABLE WITH APPLICATION AND ADDITIONAL PREMIUM.

• Patient allegation of sexual misconduct… am I insured for cost of defense? LIMITED DEFENSE PROTECTION WITHOUT ADDITIONAL PREMIUM IS PROVIDED BY MEDICAL PROTECTIVE & PROASSURANCE; ENHANCED PROTECTION IS AVAILABLE WITH APPLICATION AND ADDITIONAL PREMIUM.

• Employment Practices Liability is recommended and what does it insure? THE COST OF DEFENSE & INDEMNIFICATION ARISING OUT OF AN EMPLOYEE’S ALLEGATION OF WRONGFUL TERMINATION, RETALIATION, DISCRIMINATION OR HARASSMENT.

• Are there concerns about the potential of a claim in conflict with the Indiana Medical Malpractice Act (IMMA) and the capitation limit of $1,250,000?  YES

• What are the implications of IMMA Rule 21 effective May 17, 2011  PA’S & CNS’S WILL BE REQUIRED TO MAINTAIN INSURANCE AND FOR, PROTECTION OF EMPLOYEES THE HEALTHCARE PROVIDER MUST BE INCORPORATED OR FORM A SOLE PRIOPRIETORSHIP. 

• Is it necessary to insure all registered and unregistered assumed names of business? YES

• Will the premiums and Fund surcharge increase or decrease in 2011?  NO, INCREASES OR DECREASES ANTICIPATED; THE FUND SURCHARGE FOR PHYSICIANS DECREASED 44%  2008-2010.

John R MacLennan CPCU RPLU     john@maclennanbain.com                      219 464 0100 x 16

Ross W MacLennan CPCU               ross@maclennanbain.com                      219 464 0100 x 17

Tammy M Javor                                tammy@maclennanbain.com                  219 464 0100 x 21

Jill E MacLennan                               jill@maclennanbain.com                        219 464 0100 x 11

• Benefits  / LIFE & HEALTH  Michelle R Albert   michelle@maclennanbain.com   

• Office   Shawn J Dickt  shawn@maclennanbain.com   

• Personal   Jody L Anderson   jody@maclennanbain.com   

• Professional / HEALTHCARE  Tammy M Javor   tammy@maclennanbain.com   

• PROFESSIONAL  / ACCOUNTING & LAW Baili R Albert  baili@maclennanbain.com 

Ross W MacLennan CPCU / John R MacLennan CPCU RPLU / www.maclennanbain.com

May 2009

The engagement of a healthcare intern is both a rewarding and challenging experience for physicians, surgical centers, hospitals and other healthcare organizations.

Internships also create significant risk management challenges for underwriters of professional, general, non-owned auto, workers compensation and employers liability insurance.

As a general rule, the sponsoring college or university considers the intern to be a student and will not accept responsibility for risk management and insurance.

For example if the intern, as an independent contractor student is injured while on the job, it raises the question of whether the injury will be treated as a workers compensation claim or if it provides the intern an opportunity to present you with a general liability claim.

Professional and non-owned auto liability issues are equally challenging.

Our risk management recommendation is that you treat the intern as your employee.

The alternative is to secure from the college or university evidence of insurance with proper insuring agreements including contractual liability.

Please submit contracts for risk management review and consult with your attorney.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

Recommendations for your consideration:

• Request a certificate evidencing professional liability, general liability (additional insured) and workers compensation insurance.
• Insurance company AM Best Financial Strength Rating…A-/Excellent or better.
• Compliance with the Indiana Medical Malpractice Act: Compliance is essential for your vicarious liability protection and normally hospital by-laws will require compliance with the Act.
• If the policy is claims-made:  What contractual assurance do you have that a tail will be provided? Is the discovery period of the tail for an unlimited number of years?
• Does the policy contain an unfavorable indemnity or defense deductible?
• Is the insurance company admitted and approved to do business in Indiana?
• Does the insurance company retain a local Indiana defense attorney?
• What is their experience as an Indiana professional liability insurance company?

Please call with your questions.

John R MacLennan CPCU RPLU / john@maclennanbain.com / mbiprofessional.com

January 2008

The term Medical Director signifies that an individual physician has been engaged by a healthcare facility to perform administrative functions on behalf of the facility.

The policy of Professional Liability insurance provided for an individual physician does not extend to provide protection for service as a Medical Director.

It is appropriate that this protection be provided by the healthcare facility.

We recommend a written contract of engagement confirming responsibility for both Professional Liability insurance in compliance with the Indiana Medical Malpractice Act and Directors & Officers Liability, in addition a requirement that a confirming certificate of insurance be provided.

Please contact MBI for risk management advice and consult with your Attorney for contractual advice.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

• Professional Liability…you are insured for the full cost of defense in addition to your limits of liability…the expense of defending a minor incident of malpractice can be as much as $10,000 and the expense of defense involving complications, including a jury trial, could range from $25,000 to $100,000.

Also…“…this policy does not cover payment of damages (but will defend) in any claim for damages if said damages are inconsequence of the performance of a criminal act or willful tort or sexual act…”

• DISCIPLINARY AND LICENSURE COVERAGE...the Company’s obligation to defend “any claim for damages” as provided for in the Policy is clarified to include the defense of any disciplinary, licensure or similar administrative proceeding brought against an Insured, subject to restrictions.

The Company will not pay more than $25,000 on behalf of an Insured for any single proceeding.

• MEDICARE/MEDICAID BILLING ACTIONS...defense of an Insured in an investigation, civil suit and/or administrative proceeding which is brought by a state or federal agency which alleges improper submission of claims for reimbursement under the Medicare or Medicaid program.  

The Company will not pay more than $25,000 in defense costs for any single “incident” covered by this endorsement.

• For a complete understanding of protection and insurance conditions please refer      to policy forms T686 CMI 1086, 541 & 295

In all cases prompt reporting of the incident and selection of your defense attorney by the insurance company are policy conditions.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

John R MacLennan CPCU RPLU / MacLennan & Bain Insurance / mbiprofessional.com

• We are pleased to recommend this superior company
• Occurrence form
• Claims Made form is an option:
  • Premium savings as compared with occurrence form:  year one 54%, year two 38%, year three 13% and 5% thereafter.
  • No tail premium if policy terminated due to death, permanent disability or permanent retirement.
  • Tail premium is 175% of the premium mature.
  • Premium savings options include risk management
• Enhanced to include $25,000 legal defense for non professional liability incidents
• Enhanced to include $50,000 Cyber Liability January 2011
• Competitive premiums & interstate increased limits
• Superior legal defense, underwriting & risk management service
• AM Best Financial Strength Rating A++ / Superior
• A member of the Berkshire Hathaway Group since 2005
• Service & home office in Fort Wayne Indiana
• Strength.  Defense.  Solutions.  Since 1899

John R MacLennan CPCU RPLU/ john@maclennanbain.com / mbiprofessional.com

May 2009

It is recommend that medical records or copies of records should be retained indefinitely; however, if keeping records indefinitely is not a realistic option, at minimum such records should be retained according to the following guidelines:

• Adult Records – retain records at least ten years from the last date of treatment
• Pediatric Records – retain records until the minor reaches 21 years of age plus six months
• Deceased Patient Records – retain records at least ten years after date of death

One year should be added to all of these time periods to allow for actual service of process.

You may wish to explore additional record retention options, which may include record storage facilities, microfilms, and/or scanning to CD ROM, all of which can assist in record retention efforts.

Source: ProAssurance, November 2002

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

May 2009

The functions of a medical review officer create insurance challenges.

• Professional Liability insuring companies regard the functions of an MRO to be within the scope of patient care and protection is provided.
• Indiana Medical Malpractice Act
  Protection, however, may not be insured under the scope of the Act.
• General Liability
  Some activities of the MRO may lead to a General Liability.
• Tele Medicine Healthcare
  Refer to this item in the professional library.

Consult with your attorney.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

September 2009

The medical review panel (MRP) is composed of three health care professionals and one attorney who serves as chairman and facilitator but has no voting authority.

The MRP was established in 1975 with the passage of the Indiana Medical Malpractice Act.

The plaintiff and defendant each choose one health care provider; these two providers choose a third.  If the defendant is a health care professional who specializes in a limited area of medicine, two of the panelists selected must be from the same field as the defendant. 

The side in whose favor the majority opinion is written pays these panel expenses.

The panel opinion must be rendered within 180 days after selection of the last member of the panel.

Though the panel’s findings are not legally binding, each panel member can be called upon to provide expert testimony should the case proceed to court for a ruling.  The report also is admissible as evidence in any action brought by the claimant.

If a decision is rendered against the health care provider, the Indiana insurance commissioner is responsible for forwarding the health care provider’s name to the appropriate board of professional registration and examination for review of the health care provider’s fitness to practice his profession.

Comment:  It is the opinion of the insurance company claim administrators and defense attorney’s that the MRP contributes to an unusually high frequency of claims in Indiana as compared with other states having similar characteristics.

John R MacLennan CPCU RPLU/ john@mbiins.com/  mbiprofessional.com

May 2009

This is a challenging topic with consideration for the Indiana Medical Malpractice Act. 

The Act provides a $1,250,000 per occurrence capitation limit that includes primary insurance limits of $250,000 each occurance/$750,000 annual aggregate in combination with the Patients Compensation Fund of $1,000,000.

The Indiana Medical Malpractice Act is not compatible with the common or statutory law of other states.

When moving your practice to Indiana it is necessary to terminate the existing policy and if provided on a claims made form purchase the reporting endorsement from the company currently providing your insurance.

When moving your practice out of Indiana and protection is provided on a claims made form it is appropriate to purchase the reporting form protection from the company currently providing your insurance.

If you are moving your practice within the State of Indiana; circumstances will vary, please call for advice.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

September 2009

The NPDB was established through the Health Care Quality Improvement Act of 1986.

The intent of the NPDB is to improve the quality of health care by encouraging State licensing boards, hospitals and other health care entities and professional societies to identify and discipline those who engage in unprofessional behavior.

The NPDB is a resource to assist State licensing boards, hospitals, and other health care entities in conducting investigations of the qualifications of the health care practitioners they seek to license or hire, or to who they wish to grant membership or clinical privileges.

The information required to be reported to the NPDB is applicable to all health care practitioners who are licensed by the State to provide health care services.

The information contained in the NPDB report is intended to direct discrete inquiry into and scrutiny of specific areas of a practitioner’s licensure, professional society memberships, medical malpractice payment history, and record of clinical privileges.

State medical and dental boards must report certain disciplinary actions related to professional competence or conduct taken against the licenses of providers.

Source:  Medical Protective/ Litigation Support:  Maintaining your Balance.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

February 2010

• Indiana Patients Compensation Fund Surcharge
  Year 1 – 50%
  Year 2 – 25%
• ProAssurance
  Year 1 – 50%
  Year 2 – 25%
• Medical Protective
  Year 1 – 50%
  Year 2 – 25%
• IRMIA None

    
John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

May 2010

Protection $250,000 per claim/ 750,000 annual aggregate and participation in the Indiana Patients Compensation Fund/ $1,250,000 capitation limit per claim.

Considerations:

• AM Best Financial Strength Rating A / Excellent
• Occurrence form
• Part time…20 hours or less per week
• Endorsed by American Academy of Nurse Practitioner’s

John R MacLennan CPCU RPLU / john@maclennanbain.com / mbiprofessional.com

The average indemnity and expense payments for nurse practitioner liability claims have increased at a rate of 2.3 percent per year over the past 10 years, according to a review of claims by CNA HealthPro.

The data showed that the average indemnity payment increased from $168,600 in 1999 to $189,300 in 2008 and average expenses included legal costs increased from $28,500 to $42,900 over the same period.

CNA HealthPro has paid $64,800,000 in claims over the past 10 years and has placed $24,900,000 in reserves.

In the last 10 years, nurse practitioners have increased their role in patient care; and as a result, there is a greater focus on nurse practitioners in malpractice litigation. Bruce Dmytrow, Vice President of Specialty Risk Control, CNA.

Other highlights of the report:

• The medical care office is the location with the highest number of claims.
• Adult/geriatric, family and pediatric/neonatal medicine specialties continue to have the most claims.
• Pediatric/neonatal specialty has the highest average claim severity.
• Several closed claims that settled at the policy limit of $1,000,000 resulted from allegations of failure to diagnose or failure to properly assess.

Source: Insurance Journal March 29, 2010

Effective March 1, 2008 the Indiana Department of Insurance required NP’S maintain their own professional liability protection in order to be in compliance with the Indiana Medical Malpractice Act with the exception of hospital employed NP’S.

The combination of insurance and the Indiana Patients Compensation Fund provide a per claim capitation limit of $1,250,000.

John R MacLennan CPCU RPLU/john@maclennanbain.com/mbiprofessional.com

1.     Premium/ (Occurrence)

(1) <20 hours per week

2.     Indiana Patients Compensation Fund Surcharge/ May 17, 2011

  Full time                                $927

< 31 hours                                 695

 <25 hours                                 464

 <12 hours                                 232

3.      Calculations

             $                Premium               $250,000 per incident/ 750,000/ annual aggregate

                ______   Fund                     $1,000,000 per incident

             $ ______   Total                     $1,250,000 Indiana capitation limit

*AM Best Financial Strength Ratings A/ Excellent

MacLennan & Bain Insurance/ 219 464 0100/ F 219 464 2866

John R MacLennan CPCU RPLU/ john@maclennanbain.com 

Tammy M Javor/ tammy@maclennanbain.com

Jill E MacLennan/ jill@maclennanbain.com

www.mbiprofessional.com

2.     Indiana Patients Compensation Fund Surcharge/ May 17, 2011

   Full time                         $927

   < 31 hours                        695

   <25 hours                         464

   <12 hours                          232

3.     Calculations

      $                  Premium               $250,000 per incident/ 750,000 annual aggregate

           ________     Fund                    $1,000,000 per incident

        $                 Total                     $1,250,000 Indiana capitation limit

*AM Best Financial Strength Rating A++/ Superior

MacLennan & Bain Insurance/ 219 464 0100/ F 219 464 2866

John R MacLennan CPCU RPLU/ john@maclennanbain.com

Tammy M Javor/ tammy@maclennanbain.com

Jill E MacLennan/ jill@maclennanbain.com

www.mbiprofessional.com

June 2009

The Indiana Department of Insurance effective March 1 2008 required the following Independent Ancillary Providers to maintain their own policy of insurance to qualify for the benefits of the Indiana Medical Malpractice Act including: Dentists, Certified Registered Nurse Anesthetists, Nurse Midwives, Nurse Practitioners, Optometrists and Psychologists. 

Soon it is anticipated that the ruling will be amended to include Physicians Assistants & Clinical Nurse Specialists.

In addition we believe the Fund surcharge will be computed by an index formula determined by the IDOI rather than 110% of the premium; this ruling is not applicable to hospital employees.

The surcharge for others including surgery centers may be reduced from 110% to 100%.

Hospitals and physicians have been on an index formula since July 1, 1999.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance / mbiprofessional.com

January 2009

The occurrence form of healthcare professional liability insurance is the traditional form of protection.

The occurrence form provides protection for an incident that occurred while the policy was in force, regardless of when the claim is made. 

In the current era some companies may offer both occurrence and claims made or claims made exclusively.

The claims made form provides protection with the requirement that the policy be in force at the time of the incident and when the claim is made; thus, at the time of policy termination it is necessary to pay a premium and purchase the “tail” endorsement.

Claims made may have some economic advantages.

Occurrence does not require an additional premium or “tail” endorsement at the time of policy termination.

The Indiana Medical Malpractice Act with a favorable statute of limitations and per claim capitation limit of $1,250,000 favors the occurrence form.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance /mbiprofessional.com 

May 2009

This rapidly emerging classification of healthcare provider poses a significant challenge for professional liability insurance underwriters.

The definition of paramedics include the following…nurse midwife, nurse anesthetist, nurse practitioner, physician’s assistant, surgeon’s assistant, per fusionist, optometrist, emergency medical technician, and any other person licensed, certified or authorized to deliver an advanced level of health care in the absence of direct supervision by a licensed physician.

Commencing with renewal of insurance March 1, 2008, the following are required to maintain insurance for compliance with the Indiana Medical Malpractice Act: CRNA, Nurse Midwife, Nurse Practitioner, and Optometrist.

If the paramedic is an employee of a hospital, surgery center or physician, underwriters may include protection without additional premium.

Underwriters may require an application for the employed paramedic and protection may be excluded unless the application is completed and the paramedic added to the policy by name.

It is anticipated in the near future that certified nurse specialist and physicians assistant will be required to maintain insurance.

If the paramedic is an independent contractor, it is essential that you secure a certificate of insurance including compliance with the Indiana Medical Malpractice Act.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

February 2010

• Patients Compensation Fund:
  Weekly Hours        Credits
  Less than 12         -75%
  Less than 25        -50%
  Less than 31        -25%
• ProAssurance:
  < 20 hours        35%/Surgeons
  < 20 hours        50%/All Others
  < 10 hours
• Medical Protective:
  < 20 hours        30%
  < 10 hours        50%
• IRMIA…None

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

February 2010

• Indiana Patients Compensation Fund Surcharge
  Weekly Hours        Credits
  Less than 12        -75%
  Less than 25        -50%
  Less than 31        -25%
• ProAssurance
  Less than 20 hours    35% / Surgeons
  Less than 20 hours    50% / All Others
• Medical Protective
  Less than 20 hours    30%
  Less than 10 hours    50%
• IRMIA None

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

November 2009

Healthcare providors should take practical steps to ensure potential evidence (medical records, x-ray films, EKG monitor strips, etc) is properly protected, retained and stored.  This would include at a minimum storage in a suitable place, adequate indexing and appropriate storage facilities.  Such information should also be stored in a secure manner after hours and not be readily accessible to cleaning crews, security staff or anyone who may have access to the office.

To ensure essential record retention, we recommend the following:

• Release only copies of patient information
• Release only upon receipt of proper authorization
• Require patients to sign an acknowledgement of release of original films
• Establish a records retention policy

Records should be retained for the longest period of time required under any applicable statutes or regulations including Medicare/Medicaid regulations.

ProAssurance recommends medical records be retained indefinitely.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

Patient Records

Healthcare providers should take practical steps to ensure that all medical records are properly protected, retained and stored. 

To ensure essential record privacy, we recommend the following:

• Release only copies of patient information
• Release only upon receipt of proper authorization
• Provide copy of films and x-rays instead of original film
• Require patients to sign an acknowledgement for release of films
• Establish a records retention policy

Of increasing concern is the security of computerized records to guard against cyber liability.

Records should be retained for the longest period of time required under any applicable statutes or regulations including Medicare / Medicaid regulations.

Indiana requires a seven year retention of records (IC 16-39-7-1); however, there are extenuating circumstances such as the Indiana Medical Malpractice Act statute of limitations for a minor which is 2 years following age 6.

Sources: Medical Protective & ProAssurance

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

August 2009

The best possible risk management solution to the challenge of patient transportation may be to avoid patient transportation whenever possible.

It remains, in our opinion, the single most complicated insurance & risk management challenge in Indiana healthcare.

The complications of conflicting & excluding policy language including:

• Professional liability
• General liability
• Auto liability/ owned, non-owned & hired vehicles
• Aviation/ helicopter liability
• Workers compensation
• Directors & Officers liability

A further and perhaps even more significant complication is the question of whether the Indiana Medical Malpractice Act (IMMA) will consider an incident occurring at the time of transportation to be within the scope of the Act, including, the Indiana Patients Compensation Fund of $1,000,000 & the professional liability capitation limit, currently of $1,250,000.

Additionally patient transportation across Illinois, Michigan, Ohio or Kentucky state lines is a potential complication with consideration for the territorial limitations of the IMMA.

If you are hiring a third party patient transportation service it is recommended that you have a proper contract with recommended liability limits, contractual indemnification , hold harmless and additional insured agreements subject to the advice of your corporate attorney.

An example of a common risk exposure is your employee using their owned auto to provide a patient with transportation.

Other forms of patient transportation range from the wheelchair to aviation/
helicopter…all require good judgment and appropriate risk management.

Please advise MBI immediately if you are now providing or considering providing vehicular patient transportation.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

February 2010

Effective March 1, 2010 the Indiana Department of Insurance has decreased the physician’s fund surcharge by 17.7% ; this will take effect on your next renewal date.

The physician’s fund surcharge has decreased 44% since March 1, 2008.

The surcharge for hospitals is based on an IDOI formula; surcharge for all other healthcare providers is currently 110% of their premium.

The Fund provides you with a $1,000,000 limit of liability per claim in excess of $250,000 provided by your insurance company for a capitation limit of $1,250,000 per claim.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance / mbiprofessional.com

1.     Premium/ (Occurrence)

2.     Indiana Patients Compensation Fund Surcharge/ May 17, 2011

     Full time                                   $927

    < 31 hours                                   695

     <25 hours                                   464

     <12 hours                                   232

3.      Calculations

          $                Premium                  $250,000 per incident/ 750,000 annual aggregate

             ______   Fund                        $1,000,000 per incident

          $ ______   Total                        $1,250,000 Indiana capitation limit

*Am Best Financial Strength Rating A/ Excellent

MacLennan & Bain Insurance/ 219 464 0100/ F 219 464 2866

John R MacLennan CPCU RPLU/ john@maclennanbain.com  

Tammy M Javor/ tammy@maclennanbain.com

Jill E MacLennan/ jill@maclennanbain.com

www.mbiprofessional.com

www.mbiprofessional.com

May 2009

What are your recommendations when we are recruiting a physician insured on a claim’s made policy?

We recommend the physician purchase the reporting endorsement from the current insuring company.  

• Uniform policy forms are recommended for all employed health care providers.  
• Precedent for the future handling of similar circumstances.
• The transfer of the original claims made retroactive date may be acceptable to underwriters for a physician practicing in Indiana; however, it would not be acceptable for physicians practicing in other states.  
• If the endorsement is not purchased prior to the date of employment, claims incurred prior to the date of employment are reported after the date of employment while employed elsewhere become the responsibility of the new employer; thus the potential of future adverse premiums may occur based on these claims.
• Circumstances may cause prior claims to influence future premiums even if the reporting endorsement is purchased.
• At the date of employment termination conflicts may arise over question of who is responsible for the reporting endorsement premium.
• The reporting endorsement premium is known at the time of application; a future reporting endorsement premium is unknown.
• The premium for the reporting endorsement is not uniform throughout Indiana.
• The premium for the reporting endorsement accelerates from policy year one and thereafter.  
• The formula for computing reporting endorsement premium is subject to increase.  

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

May 2010

First Insurance Funding and other similar companies offer this service for your consideration.

The terms include a down payment and monthly payments subject to a finance service fee.

The finance company can order policy cancellation for late or non payment.

MacLennan & Bain Insurance while recommending First Insurance Funding confirms that we have no contractual arrangement with them and receive no form of remuneration for the services they provide you.

Please call if you have any questions.

John R MacLennan CPCU RPLU / john@maclennanbain.com / mbiprofessional.com

September 2009

Your insurance company as a condition of professional liability protection requires premium payment on or before the effective date of the policy; normally provided for a full 12 month period with some rare exceptions.

The insuring company is also charged with the responsibility of collecting the Indiana Patients Compensation Fund Surcharge & remitting the surcharge payment with proof of insurance to the Indiana Department of Insurance; the surcharge is payable to the State in full at inception.

IRMIA offers an alternative payment plan that features a 40% down payment of premium and 100% of the fund surcharge with two 30% installments which include a $15 installment fee.

Medical Protective & ProAssurance both offer premium financing plans; and depending on volume of premium they may also offer payment plans with interest free payments.

Premium finance arrangements are, also available from several other sources including companies specializing in insurance financing such as First Insurance Funding.

Please call for advice.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

• Claims Made PLUS is unique to ProAssurance; it is an enhanced and improved form of insurance that was introduced exclusively in the State of Indiana in 2003 and continues to be the superior professional liability claims made form of insurance for physicians.
• PREMIUM SAVINGS… year one 54%, year two 31% & 8% thereafter.
• TAIL PREMIUM…is 100% of the mature premium.
• NO TAIL PREMIUM if cancelled as a result of death, disability or permanent retirement (1)
• NO TAIL PREMIUM if moving practice permanently [3 years] out of State of Indiana (1)
• NO TAIL PREMIUM if the physician wishes to retire at age 65 (1)
• PARAMEDICS TAIL PREMIUM…$210
• Enhanced to include $25,000 legal defense for non professional liability incidents
• Enhanced to provide $50,000 of Cyber Liability/ June 2011
• AM Best Financial Strength Rating A / Excellent
• Founded by the Indiana State Medical Association in 1983
• Rated by WARD’s as one of the top 50 insurance companies
• Superior defense, underwriting and risk management service.
• Service office: Greenwood, Indiana

(1)   Subject to policy conditions

John R MacLennan CPCU RPLU / john@maclennanbain.com / mbiprofessional.com

This unique endorsement is contained in your policy of insurance without additional premium; protection includes the following enhancements which will provide $25,000 per incident for non-professional legal defense (no indemnity) with a $125,000 aggregate (PRA - HCP 071 09 05).

1. An investigation or proceeding commenced by the governmental or regulatory agency charged with determining whether the covered insured participated in the improper transfer of a patient (“dumping”), in violation of the Consolidated Omnibus Budget Reconciliation Act of 1986, as amended (“COBRA”).
2. An investigation or proceeding commenced by the governmental or regulatory agency charged with the enforcement of compliance with laws regulating Medicare or Medicaid (or other federal or state health care program offered as an alternative to Medicare or Medicaid), to determine whether the covered insured provided professional services improperly to a patient covered by Medicare or Medicaid (or other federal or state health care program offered as an alternative to Medicare or Medicaid).
3. An investigation or proceeding commenced by a utilization and quality control peer review organization, but only at the level of such investigation or proceeding in which sanctions may be imposed on the covered insured.
4. An investigation or proceeding commenced by the governmental or regulatory agency charged with the enforcement of compliance with regulations pertaining to the Clinical Laboratory Improvement Amendments of 1988 (“CLIA”), whether or not the covered insured was in violation of such regulations.
5. An investigation or proceeding commenced by the governmental or regulatory agency charged with the enforcement of compliance with regulations pertaining to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) or the Omnibus Budget Reconciliation Act of 1990 (OBRA’90”), whether or not the covered insured was violation of such regulations.
6. An investigation or proceeding commenced by the governmental or regulatory agency charged with the enforcement of compliance with the Occupational Safety and Health Administration (“OSHA’90”), regulations pertaining to bloodborne pathogens, whether or not the covered insured was in violation of such regulations.
7. A subpoena or request received by the covered insured, requiring the covered insured to testify in a trial or deposition, or to provide other discovery, other than as an expert witness, in connection with a legal proceeding (1) arising out of a professional incident, but (2) in which the covered insured is not a party.
8. A claim or investigation instituted by a patient of the covered insured alleging sexual misconduct or harassment by the covered insured in the course of providing professional services to such patient.
9. A claim or investigation instituted by a patient of the covered insured alleging errors or omissions by the covered insured in billing statements for professional services rendered to such patient.
10. A disciplinary proceeding initiated by licensure commission, board or ethics or similar professional engaged in, improper or unprofessional conduct in the course of such covered insured’s medical practice.
11. An investigation or proceeding commenced by any federal or state agency alleging violation by any covered insured or Medicare or Medicaid laws, rules or regulations relating to reimbursement for medical services.

In all cases prompt reporting of the incident and selection and approval of your defense attorney by the insurance company are policy conditions.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

This unique endorsement is contained in your policy of insurance without additional premium; protection includes the following enhancements which will provide $25,000 per incident for non-professional legal defense (no indemnity) with a $125,000 aggregate (PRA - HCP 071 09 05).

1. An investigation or proceeding commenced by the governmental or regulatory agency charged with determining whether the covered insured participated in the improper transfer of a patient (“dumping”), in violation of the Consolidated Omnibus Budget Reconciliation Act of 1986, as amended (“COBRA”).
2. An investigation or proceeding commenced by the governmental or regulatory agency charged with the enforcement of compliance with laws regulating Medicare or Medicaid (or other federal or state health care program offered as an alternative to Medicare or Medicaid), to determine whether the covered insured provided professional services improperly to a patient covered by Medicare or Medicaid (or other federal or state health care program offered as an alternative to Medicare or Medicaid).
3. An investigation or proceeding commenced by a utilization and quality control peer review organization, but only at the level of such investigation or proceeding in which sanctions may be imposed on the covered insured.
4. An investigation or proceeding commenced by the governmental or regulatory agency charged with the enforcement of compliance with regulations pertaining to the Clinical Laboratory Improvement Amendments of 1988 (“CLIA”), whether or not the covered insured was in violation of such regulations.
5. An investigation or proceeding commenced by the governmental or regulatory agency charged with the enforcement of compliance with regulations pertaining to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) or the Omnibus Budget Reconciliation Act of 1990 (OBRA’90”), whether or not the covered insured was violation of such regulations.
6. An investigation or proceeding commenced by the governmental or regulatory agency charged with the enforcement of compliance with the Occupational Safety and Health Administration (“OSHA’90”), regulations pertaining to bloodborne pathogens, whether or not the covered insured was in violation of such regulations.
7. A subpoena or request received by the covered insured, requiring the covered insured to testify in a trial or deposition, or to provide other discovery, other than as an expert witness, in connection with a legal proceeding (1) arising out of a professional incident, but (2) in which the covered insured is not a party.
8. A claim or investigation instituted by a patient of the covered insured alleging sexual misconduct or harassment by the covered insured in the course of providing professional services to such patient. (1)
9. A claim or investigation instituted by a patient of the covered insured alleging errors or omissions by the covered insured in billing statements for professional services rendered to such patient.  (1)
10. A disciplinary proceeding initiated by licensure commission, board or ethics or similar professional engaged in, improper or unprofessional conduct in the course of such covered insured’s medical practice.  (1)
11. An investigation or proceeding commenced by any federal or state agency alleging violation by any covered insured or Medicare or Medicaid laws, rules or regulations relating to reimbursement for medical services.  (1)

In all cases prompt reporting of the incident and selection and approval of your defense attorney by the insurance company are policy conditions.  (1)  $1,000 Deductible

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

• Professional Liability…you are insured for the full cost of defense in addition to your limits of liability…the expense of defending a minor incident of malpractice can be as much as $10,000 and the expense of defense involving complications, including a jury trial, could range from $25,000 to $100,000.
• NON-PROFESSIONAL basic form…this unique enhancement is contained in your policy of insurance without additional premium…protection is provided for legal defense of non-professional claims (no indemnity)…$25,000 each claim with a $125,000 aggregate…endorsement PRA-HCP-070 09 05
• Non-professional extended form (1)…includes the following enhancements which will provide $25,000 per incident for non-professional legal defense (no indemnity) with a $125,000 aggregate…endorsement PRA-HCP 071 09 05

A claim or investigation instituted by a patient of the covered insured alleging sexual misconduct or harassment by the covered insured in the course of providing professional services to such patient.

A claim or investigation instituted by a patient of the covered insured alleging errors or omissions by the covered insured in billing statements for professional services rendered to such patient.

A disciplinary proceeding initiated by a licensure commission, board of ethics or similar professional body, which accuses a covered insured of, or investigates an accusation that a covered insured engaged in, improper or unprofessional conduct in the course of such covered insured’s medical practice.

An investigation or proceeding commenced by any federal or state agency alleging violation by any covered insured of Medicare or Medicaid laws, rules or regulations relating to reimbursement for medical services.

In all cases prompt reporting of the incident and selection of your defense attorney by the insurance company are policy conditions.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

                                                                                                        Premium Credits

     Risk Management Credits (4)

• Physicians Risk Management Meeting / Spring & Fall                        -5% (2)
• New Online Risk Management / 0.5% or 1% per segment                 -2% (3)
• Regional Risk Management Advisory Board Meetings                           -5(2)                    
• OB/GYN Risk Management                                                                   (2)
• Practice Manager Risk Management Meeting / Spring                         -2%  

     Other Credits

• New to Practice                                              year 1 & 2          -50% & -25%
• Loss Free/ Years of Experience                                 3-5                       -5%  (1)

                                                                                     6-10                     -10%

                                                                            11 or more                     -15%

• Part-time < 20 hours                                                               -35% to 50%  
• Indiana Patients Compensation Fund surcharge part time and new to practice credits are also applicable                                                                

(2) Seminars are hosted locally in the Spring and Fall (October 27)… for registration contact Carol Finner 800 282 1036 or cfinner@proassurance.com

If unable to attend you can complete an online program for credit of 2.5%.

(1)   Subject to underwriting judgment and can result in premium debit.

(2)   Call for enrollment advice.

(3)   Enrollment online / maximum 2% credit / www.proassurance.com/seminars/online.aspx

(4)   Maximum credit for all Risk Management programs combined is 12%.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

When insuring a qualified healthcare provider, will the provisions of the Indiana Medical Malpractice Act (IMMA) extend to provide professional liability protection to employees, who have a dual employment relationship with the healthcare provider and PEO?

Amy Strati, Chief Legal Counsel, Indiana Department of Insurance…April 28, 2006.

In 2005, Indiana passed IC 27-16 regarding PEO’s…effective December 31, 2005.

Pursuant to IC 27-16-2-5 the person is co-employed by the client (in our hypothetical…the health facility) and the PEO.

 Under IC 27-16-7-4 the client (health facility) is responsible for the professional acts of the co-employee.

 However, this responsibility can be altered by specific contract language (IC 27-16-7-2).

 So…generally speaking the person can be covered by the facility and included in the Indiana Patients Compensation Fund coverage just like other employees.

In summary, the professional liability provided by the company insuring the physician hospital or surgery center including the IMMA will extend to include the employees of the healthcare provider and PEO; however, protection is not extended to the PEO itself.

Please submit copies of contractual agreements for risk management review, including agreements containing contractual indemnification, hold harmless or additional insured requirements.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessionals.com

October 2009

• Preferred ……………AM Best Financial Strength Rating of A- / Excellent or better, admitted to do business in Indiana and subject to supervision of Indiana Department of Insurance (IDOI); examples include ProAssurance & Medical Protective.
• Standard .................essentially the same characteristics as preferred but perhaps the premium or policy conditions reflect less than preferred underwriting characteristics.
• Non standard………admitted to do business in Indiana however with a weak financial strength rating or restrictive policy conditions.
• Sub standard………any combination of the following: not admitted in Indiana, excess & surplus, not subject to Indiana Insolvency Statutes or IDOI supervision, restrictive policy conditions and weak financial rating.
• Governmental ..........Indiana Residual Malpractice Insurance Authority IRMIA [State of Indiana] established 1975 and is a standard company in many respects however the healthcare providor has demonstrated for any one of a  wide variety of reasons that he/she is not acceptable to the preferred or standard market.  

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

Company                                               AM Best Financial Strength Rating           Established

ProAssurance                                                         A / Excellent                                    1976

Medical Protective                                             A++ / Superior                                 1899

IRMIA                                                             State of Indiana                               1975

Service • Experience • Strength

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

219 464 0100 x 16 / john@maclennanbain.com/ mbiprofessionals.com

October 2009

During a public health emergency, PREP gives immunity from lawsuits to qualified persons who prescribe, administer, or dispense countermeasures, unless they were acting with willful misconduct.

The PREP Act was enacted in 2005 by Congress.

A covered countermeasure may include vaccines, antidotes, medications, medical devices or other FDA regulated assets used to respond to pandemics, epidemics, or any biological, radiological, or nuclear threat.

The following are covered by PREP:

Program planners of countermeasures (i.e., individuals and entities involved in planning and administering programs for distribution).

Qualified persons who prescribe, administer, or dispense countermeasures (i.e., healthcare and other providers).

Officials, agents, and employees of any of these entities or persons are also covered persons.

Source:  Indiana State Department of Health

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

June 2009

Considerations are many given the evolution of medicine today.

First, consult with both your attorney and accountant for advice.

Proper notice to your patients is of importance: mbiprofessional.com  Closing Your Practice.

If you are insured on a claims made form you will need to complete the “tail”.

In most instances your retirement “tail” will be without additional premium, however, there will be a $100 filing fee with the State of Indiana Patients Compensation Fund.

You may wish to give consideration to the following:

“If current trends continue, the US will be short by about 125,000 family care doctors by 2020, according to Dr Ted Epperly, president of the AAFP board.  He estimated that the US needs between 40 percent and 50 percent more family practice doctors than the nearly 100,000 practicing now.

It is a problem growing worse in our community and across the country, where more aging doctors are finding they can not retire.  In the US, there are at least 4,500 primary care doctors older than 75, according to figures from the Physicians Master file database maintained by the American Medical Association.  Overall, there are about 270,000 doctors practicing primary care, which includes family, general medicine and internal medicine.”  Jo Nel Aleccia, msnbc.com  June 2009.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

July 2009

As an Indiana healthcare provider you may be engaged as an independent contractor by a high school, university or professional sports organization.

Professional liability underwriters require notification that may result in underwriting action, premium increase or policy enhancement.

If you travel with the team outside of Indiana it poses a challenge with consideration for:

• Licensing requirements as a condition of protection.
• Licensing requirements of other states.
• International protection including both underwriting and legal challenges.
• Excess contingent liability limits, i.e., the Indiana Medical Malpractice Act does not apply to incidents occurring outside of the State of Indiana and accordingly, your current limits of liability are $250,000 per incident/$750,000 aggregate.

Effective July 1, 2009 the Indiana Medical License Board will no longer require a visiting team physician to be licensed in the State of Indiana.

Please call for advice.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessional.com

May 2009

Tele Medicine poses a significant presents a challenge for Indiana professional liability insurance underwriters.

First is determining if the out of state Tele Medicine provider is a licensed and qualified Indiana Healthcare provider.

Another consideration is whether the provider’s professional liability insurance is in compliance with our Indiana Medical Malpractice Act; underwriters will not approve a provider who is domiciled in a state where they are licensed to do business.

Protection under your policy of insurance may include a limitation or an exclusion of the vicarious risk exposure presented by a Tele Medicine provider, who does not meet these qualifications.

A risk management review of the contract is essential to confirm that it does not contain an additional insured, indemnification or hold harmless agreement, i.e., these contractual conditions are specifically excluded by your Indiana policy of insurance.

Please submit Tele Medicine contracts for risk management review and underwriting approval in addition consulting with your attorney.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessionals.com

May 2009

ARE YEARS* OF VOLATILITY FINALLY OVER IN MEDICAL MALPRACTICE?

“The insurance environment for Healthcare Professional Liability seems to be one of stability, calm and improvement.

Reinsurance Changes  Historically, with its high volatility, high severity, and lengthy turnaround time for results, malpractice insurers were at the back of the line for a limited number of available reinsurers; however, supply and demand in the market has been altered.

Frequency of Claims Has Dropped Dramatically  Estimates of the drop in frequency compared to high points of previous years, range from a drop of 30 percent to a drop of more than 50 percent in the number of claims reported.  Most experts consistently show that the severity of medical professional liability claims continues to rise at six to seven percent per year and the costs of defense are rising 15+ percent per year.

Companies Are Reaping the Rewards of Previous Years  The years 2000 through 2005 were difficult days for malpractice insurance, with impacts on both carriers and consumers.  With a deteriorating loss picture (increasing frequency and severity), companies had to make tough choices.  With the improvements in 2005 and 2006, loss development appears to only be “favorable” with additional reductions in loss reserves for the insurance companies.

Companies Have Money to Spare  Companies find that increasing profits allow them to increase their surplus; thus stable or reduced premiums.

The Healthcare Delivery System Is Better at Preventing Claims and the Incentive To Do So Is Pervasive  Not only has the system created an environment that has embraced patient safety and prevention, the providers themselves have seen the financial incentive of claims prevention, healthcare cost reductions and the more societal improvements in patient satisfaction and wellness.

The Trial Bar Cannot Afford to Bring Cases that Have Little or No Settlement Value
There is a diminished incentive/reward for plaintiff attorneys that are not experts in this field to take medical malpractice cases. This has reduced the number of plaintiff attorneys who actively take cases of medical malpractice.

Have We Finally Reached a “Nirvana” of Stability in Medical Malpractice?  Some of the potential long-term trends are unprecedented and could provide a permanent stability, yet only the future will tell; does past experience tell us otherwise and not to trust the current market?  It remains important for both hospitals and doctors to exercise discretion.”

Author:  Philip E Dyer; Kibble & Prentice; Professional Liability Underwriting Society; March 2008

*Indiana has been a relatively stable market since 1975 thanks to our Medical Malpractice Act.

John R MacLennan CPCU RPLU/ MacLennan & Bain Insurance/ mbiprofessiona.com

These types of agreements pose risk or risk transfer complications:

• Professional Liability… normally limits of $1,000,000 / 3,000,000 are provided but not in compliance with the Indiana Medical Malpractice Act… because neither the student nor the University are qualified Indiana health care providers.
• General Liability… we recommend that an essential component is a contractual requirement that the University name you as an additional insured… failure to do so puts you at risk for a student liability suit for injuries incurred on the job.
• Workers Compensation… as a general rule the University does not treat the student as an employee and may have a complication in providing evidence of protection, thus, you maybe held vicariously liable.
• Non-Owned Auto Liability… will the University provide protection?
• Contractual Agreements… review with your attorney.

John R MacLennan CPCU RPLU / john@maclennanbain.com / mbiprofessional.com