Category: Insurance

Texas Supreme Court Rules to Foreclose Attorney’s Fees in First Party Appraisal Context

The Supreme Court of Texas has issued its much-anticipated opinion on an open attorney’s fees question in the area of First Party Property appraisals.

The issue came to the Texas Supreme Court on a certified question from the 5th Circuit and considers the practical effect of the Texas Legislature’s 2017 amendments to the Texas Prompt Payment of Claims Act, Chapter 542, Insurance Code. In short, Texas Insurance Code Chapter 542A, among other reforms, sets forth a statutory formula to determine the amount of an attorney’s fees awarded for a prevailing insured in a weather-related first party property case against an insurer. Under the statute, the amount of reasonable and necessary attorney’s fees a prevailing insured can recover is reduced when the “amount to be awarded in the judgment” is less than the amount the insured claims is owed. In the appraisal context, insurers have paid the appraisal award, along with an amount sufficient to cover any potential statutory interest under Chapter 542A, then made the argument there can be no “amount to be awarded in the judgment” such that there is no liability for attorney’s fees.

In the recent ruling, the Texas Supreme Court agreed with this argument, noting that when a carrier pays the appraisal amount plus any possible statutory interest, it has “complied with its obligations under the policy.” In doing so, there is no remaining “amount to be awarded in the judgment,” and attorney’s fees are not available.

Going forward, this ruling should return the appraisal process to its intended function – an inexpensive and prompt resolution of claims, without the need for litigation – and avoid late invocation of appraisal as gamesmanship.

© 2024 Dinsmore & Shohl LLP. All rights reserved.
by: Sarah R. Smith of Dinsmore & Shohl LLP
For more news on Attorneys’ Fees in Texas, visit the NLR Litigation / Trial Practice section.

States Continue to Adopt the “Continuous-Trigger” Theory of “Occurrence” Under Commercial General Liability Insurance Policies

A growing number of states, including Ohio, Pennsylvania, and Virginia, and most recently, West Virginia, now follow the “continuous-trigger” theory when examining coverage under an occurrence-based Commercial General Liability (CGL) insurance policy.
The West Virginia Supreme Court of Appeals recently confirmed in Westfield Ins. Co. v. Sistersville Tank Works, Inc., No. 22-848 (Nov. 8, 2023), that West Virginia law recognizes the “continuous trigger” theory to determine when insurance coverage is activated under a CGL policy that is ambiguous as to when coverage is triggered.
In 2016 and 2017, former employees of Sistersville Tank Works, Inc. (STW), filed three separate civil lawsuits West Virginia state court alleging personal injuries as the result of exposure to various cancer-causing chemicals while working around tanks that STW supposedly installed, manufactured, inspected, repaired or maintained between 1960 and 2006. STW purchased CGL policies from Westfield each year for the period 1985 to 2010. Typical of virtually all CGL policies, the Westfield CGL policies issued to STW were occurrence-based and provided coverage for bodily injury and property damage “which occurs during the policy period.”  Under the Westfield CGL policies, the bodily injury or property damage must be caused by an “occurrence,” defined under the policy as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.”
Westfield denied coverage for the three underlying lawsuits and filed a declaratory judgment complaint in the United States District Court for the Northern District of West Virginia seeking a declaration that it owed no duty to provide a defense or indemnification to STW because the former employees were diagnosed after the expiration of the last CGL policy, and, therefore, STW could not establish that an “occurrence” happened within the policy period.
The District Court granted summary judgment to STW and found that Westfield owed a duty to defend and indemnify under all the Westfield CGL policies in effect between 1985 and 2010. Specifically, the District Court concluded that Westfield’s obligation to cover a bodily injury that “occurs during the policy period” was ambiguous because the language in Westfield’s CGL policies did not clearly identify when coverage was “triggered” when a claimant alleged repeated chemical exposures and the gradual development of a disease over numerous policy periods. The District Court predicted that the West Virginia Supreme Court of Appeals would apply the continuous-trigger theory to clarify the ambiguous language in the policies at issue, which resulted in each occurrence-based CGL policy insuring the risk from the initial exposure through the date of manifestation being triggered.
Westfield appealed to the United Stated Court of Appeals for the Fourth Circuit and argued that a “manifestation trigger” of coverage should apply to determine coverage, under which only the CGL policy in effect when an injury is diagnosed, discovered, or manifested provides coverage for the claim. The Fourth Circuit, recognizing that West Virginia had not address the issue, then certified the following question to the West Virginia Supreme Court of Appeals:

At what point in time does bodily injury occur to trigger insurance coverage for claims stemming from chemical exposure or other analogous harm that contributed to development of a latent illness?

The West Virginia Supreme Court began its analysis of the certified question by observing that “in the context of latent or progressive diseases,” the definition of “occurrence” was ambiguous and subject to interpretation by the Court. The Court then examined the history of the insurance industry’s adoption of “occurrence” language in CGL policies in the 1960s including the specific intent of drafters of the “occurrence” language to include “cases involving progressive or repeated injury” in which “multiple policies could be called into play.”
The Court also observed that most courts that have examined the “continuous-trigger” theory have expressly adopted it, including Ohio (Owens-Corning Fiberglas Corp. v. Am. Centennial Ins. Co., 660 N.E.2d 770, 791 (Ohio Com. Pl. 1995); Pennsylvania (J.H. France Refractories Co. v. Allstate Ins. Co., 626 A.2d 502, 506 (Pa. 1993); and Virginia (C.E. Thurston & Sons, Inc. v. Chi. Ins. Co., No. 2:97 CV 1034 (E.D. Va., Oct. 2, 1998)). Conversely, the Court noted that no jurisdiction has adopted the “manifestation” trigger advocated by Westfield.
The Court concluded by expressly adopting the “continuous-trigger” theory of coverage to determine when coverage is activated under the insuring agreement of an occurrence-based CGL policy “if the policy is ambiguous as to when coverage is triggered.”  In doing so, the Court observed that the continuous trigger theory of coverage “has the effect of spreading the risk of loss widely to all of the occurrence-based insurance policies in effect during the entire process of injury or damage[,]” which includes the time of “the initial exposure, through the latency and development period, and up to the manifestation of the bodily injury, sickness, or disease[.]”
The Westfield decision ensures that West Virginia law concerning the activation of coverage under occurrence-based CGL policies aligns with the law in other states around the country. It also should be a reminder to businesses that purchase occurrence-based CGL policies to establish and maintain a repository of insurance policies for as long as possible, and especially for businesses that may be subject to personal injury claims that involve long latency periods between exposure and manifestation. Having copies of those policies will increase the chance of finding at least one insurer (and potentially more) that owes a defense and indemnification for such claims.
© Copyright Babst, Calland, Clements and Zomnir, P.C.
For more news on Commercial General Liability (CGL) insurance policies, visit the NLR Insurance Reinsurance & Surety section.

Study: Vehicles with Higher Front Ends Pose Greater Risk to Pedestrians

According to a recently published study by the Insurance Institute for Highway Safety (IIHS), vehicles with higher, more blunt front ends are more dangerous to pedestrians. IIHS says that vehicles with a hood height higher than 40 inches are 45% more likely to cause fatalities in pedestrian accidents than vehicles with a hood height of 30 inches or less.

Pedestrian accident deaths have risen 80% since their lowest point in 2009. In 2021, more than 20 people died per day after being hit by a vehicle.

Over the last 30 years, the average vehicle has gotten about 4 inches wider, 10 inches longer, 8 inches taller, and 1,000 pounds heavier in the US. Many vehicles are more than 40 inches tall at the leading edge of the hood.

The IIHS study examined 17,897 crashes involving a single passenger vehicle and a single pedestrian. Using Vehicle Identification Numbers to identify the vehicles, they calculated front-end measurements corresponding to 2,958 unique car, minivan, large van, SUV, and pickup models. Vehicles with pedestrian automatic emergency braking systems were excluded from the study, along with others that could affect the likelihood of a fatality, such as speed limit, and age of the struck pedestrian.

Front-End Height affects Fatalities

The study found that vehicles with hoods more than 40 inches off the ground at the leading edge and a grille sloped at an angle of 65 degrees or less, were 45% more likely to cause pedestrian fatalities than those with a similar slope and hood heights of 30 inches or less. Vehicles with hood heights of more than 40 inches and blunt front end angled at greater than 65 degrees were 44% more likely to cause fatalities.

Researchers looked at several other vehicle characteristics, including the angle of the windshield, the length of the hood, and the angle of the hood. Among these, the slope of the hood had the biggest effect. There was a 25% increase in the risk of fatality for vehicles with flat hoods (those with angles of 15 degrees or less) compared to vehicles with more sloping hoods.

Researchers found that vehicles taller than 35 inches were more dangerous to pedestrians because they tend to cause more severe head injuries. Of the vehicles taller than 35 inches, those with more blunt front ends were more dangerous than those with sloped front ends, because they cause more frequent and severe torso and hip injuries.

“Manufacturers can make vehicles less dangerous to pedestrians by lowering the front end of the hood and angling the grille and hood to create a sloped profile,” IIHS Senior Research Transportation Engineer Wen Hu, the lead author of the study, said in a statement on Tuesday. “There’s no functional benefit to these massive, blocky fronts.”

Buckfire & Buckfire, P.C. 2023
For more news on Vehicular Safety, visit the NLR Insurance Reinsurance & Surety section.

Deed Warranties and Why They Should Matter To You

You’re negotiating to buy a piece of real estate and your attorney tells you that the seller is proposing to give you a “Special Warranty Deed” in exchange for all of the money you will pay.

Special Warranty Deed – that sounds nice, doesn’t it?  But what does that term really mean?

In order to appreciate what a Special Warranty Deed will mean to you as a buyer, it will help to know a little about the different types of deeds commonly used in North Carolina.  The three most common types of deeds are:

  • General Warranty Deeds;

  • Limited Warranty Deeds; and,

  • Non-Warranty Deeds.

General Warranty Deeds

In a General Warranty Deed, the seller usually gives four warranties regarding the land to the buyer.  The seller warrants to the buyer that:

  • The seller has the right to convey the real estate.

  • The seller will defend the title to the real estate against the claims of all persons.

  • The seller is “seized of the fee” in the real estate. “Seized of the fee” basically means that the seller warrants that the seller owns all of the rights in the real estate except as specifically stated in the deed.

  • There are no encumbrances against the real estate that are not listed in the deed. An encumbrance could be a simple (even beneficial) easement that allows the power company to install a power line across the property or a multi-million dollar judgment lien against the property.  An encumbrance could be just about anything you might imagine that impacts (usually negatively) the use or value of the property, including restrictive (sometimes called “protective”) covenants that control how the real estate may be used.

Limited Warranty Deeds

However, in a Limited Warranty Deed, the seller usually gives only two warranties.  The seller usually warrants to the buyer that:

  • The seller personally has not done anything to the title that the seller received. This is a much more limited warranty than the broad warranty found in a General Warranty Deed.  As explained above, in a General Warranty Deed the seller warrants that the seller not only owns the property, but also has all of the rights in the property except as specifically stated in the deed.

  • The seller will defend the title to the property against claims based on the prior actions of the seller, but no one else. This also is a much more restrictive warranty than that found in the General Warranty Deed.  As noted above, in a General Warranty Deed the seller warrants that the seller will defend the title against the claims from all parties except as specifically stated in the deed.

Limited Warranty Deeds go by various names, including “Special Warranty Deeds.”  Sometimes Limited Warranty Deeds are named after the grantor, such as a “Trustee’s Deed” or an “Executor’s Deed,” but they all share the same characteristic in that they warrant only against the grantor’s own acts.

Non-Warranty Deeds

As one might imagine, the seller gives no warranties in a Non-Warranty Deed.  A Non-Warranty Deed is sometimes called a “Quitclaim Deed.”  Although lawyers quibble over whether there is a difference between a Non-Warranty Deed (which actually purports to convey something) and a Quitclaim Deed (which only releases any claims the grantor has in the land), they all share the same characteristic that they contain no warranty, even against the grantor’s own acts.  In a Non‑Warranty or Quitclaim Deed, the seller merely is giving the buyer whatever rights, if any, that the seller has in the property and the seller makes no warranties of any nature about the seller’s rights in the property.

But What About The Special Warranty Deed?

A Special Warranty Deed is just a Limited Warranty Deed with an appealing name.

But what does it matter if you get a Limited or Special Warranty Deed when you buy a piece of property as opposed to another type of deed?  As long as no title problems come up, it probably will not make any difference whether the seller gives you a General Warranty Deed, a Limited Warranty Deed, or a Non-Warranty Deed.  However, if a title problem should arise, the deed warranties may make a big difference to you.

Let’s take a quick look at what would occur under the different deed warranties when a simple title problem arises.  Let’s assume that you purchased your office building in 2021 from Sam Seller.  Being familiar with the area and Sam Seller, you know that Sam purchased the building from the developer in 2020.  You also know that the developer went out of business at the end of 2020.  When you purchased the property in 2021, everything went smoothly.  Everything was still going well until this past weekend when you received a notice from the county tax office indicating that the 2018 property tax bill on your office building had not been paid and the county has a lien on your property for several thousands of dollars.  Yikes!  As you scramble to locate your purchase file, let’s consider how the different deed warranties could affect your attitude once you actually find your file.

If you had received a General Warranty Deed from Sam Seller, then Sam would have warranted to you that there were no encumbrances against the property that were not listed in the deed.  So unless the deed specifically indicated that the property was conveyed to you “subject to” the 2018 unpaid taxes, you should be able to sleep restfully knowing that Sam owes you the money for the unpaid taxes.

If you had received a Limited or Special Warranty Deed though, your sleep will not be as restful.  In a Limited Warranty Deed, Sam would have warranted simply that he had not done anything to encumber or otherwise harm the title to the property while he owned the property.  Unfortunately, Sam Seller did not own the property in 2018 when the 2018 taxes became a lien on the property or in January 2019 when they became past due.  As you will recall, Sam bought the property in 2020.  Consequently, the warranties found in a Limited Warranty Deed from Sam would not cover the unpaid 2018 taxes, and Sam would not be liable to you for the unpaid taxes.

Of course, if you had received a Non-Warranty or Quitclaim Deed from Sam Seller, then Sam also would not be liable to you for the unpaid taxes.  As mentioned above, under a Non‑Warranty or Quitclaim Deed, Sam would not have warranted anything to you about the property.  You simply would have received whatever rights (if any) that Sam had in the property at that time, and Sam’s rights were subject to the lien of the 2018 taxes.

What To Do If Offered A Special Warranty Deed

So, how do you protect yourself from issues that may arise when you will receive a Special Warranty Deed?  Here are three things to do the next time you decide to buy property:

  • Regardless of the type of deed to be given at closing, get your attorney involved in the transaction before you sign a contract. Even if the contract provides for a General Warranty Deed, other language in the contract could reduce the general warranties.  For example, contract language that indicates the property will be conveyed by a General Warranty Deed “subject to all matters of record” sounds reasonable, but the “subject to” language essentially negates the general warranties because most matters encumbering title to the property will be “of record.”

  • Have your attorney conduct a title examination on the property to discover any encumbrances or title problems before you purchase the property. Even if there are no title problems, this is where your attorney will discover those “little” things that could become big problems if you did not know about them prior to purchasing the property.  For example, this is where your attorney would discover that the large open area behind the office building is subject to an easement in favor of the owner of the adjoining property that would prevent you from expanding the building into that area.

  • Have your attorney obtain title insurance for you. Title insurance will give you additional protection from unknown title risks that could raise their ugly heads in the future.  Although title insurance does not guarantee that you will not have a title problem, it does provide insurance to help pay to correct the problem or to compensate you if the problem cannot be corrected.

Conclusion

Understanding deed warranties will help you to better protect yourself from title problems and possible litigation in the future.  Special and Limited Warranty Deeds really aren’t that special and might not grant you the protections you think.  Even still, other deeds may not contain any protection for a buyer at all.

© 2022 Ward and Smith, P.A.. All Rights Reserved.
For more Real Estate Legal News, click here to visit the National Law Review.

California Enacts Legal Protections for Cannabis Insurance Providers

Several cannabis-related bills were signed by California Governor Gavin Newsom on September 18, 2022, including Assembly Bill 2568 (AB 2568), which clarifies that it is not a crime for individuals and firms licensed by the California Department of Insurance (CDI) to provide insurance or related services to persons licensed to engage in commercial cannabis activities. Though the California Civil Code was amended in 2018 to clarify that cannabis is the legal object of a contract, and it has been tacitly understood that insurance contracts are legal in California, the intent of this new law is to remove any uncertainty and to encourage further growth of admitted insurance products for California cannabis businesses.

AB 2568 adds section 26261 to the California Business and Professions Code, which states in relevant part: “An individual or firm that is licensed by the Department of Insurance does not commit a crime under California law solely for providing insurance or related services to persons licensed to engage in commercial cannabis activity pursuant to this division.”

Intent of the Law

The California Assembly’s Committee on Insurance explained the intent behind AB 2568 in a report issued earlier this year:

“The hesitancy of insurance providers to provide insurance for commercial cannabis is attributed to risk, since cannabis is classified as a Schedule I substance under the Federal Controlled Substances Act. Therefore, much of the insurance available in California is from surplus lines. This does not align with the federal government’s longstanding determination that it is in the public’s interest for states to regulate their own insurance marketplaces. Further, the argument has been refuted in federal case law brought about in Green Earth Wellness Center v. Attain Specialty Insurance Company (2016), which established that federal classification of cannabis is not relevant in an insurance provider’s determination to write an insurance policy.

It is important that commercial cannabis businesses have multiple options for insurance as they pursue licensure. AB 2568 clarifies that writing insurance for commercial cannabis does not constitute a crime, since cannabis is part of a legal, regulated market in California. This clarity will provide assurances to admitted insurers that they will not be in violation of any regulations and encourage them to provide an insurance product.”

In addition, AB 2568 was strongly supported by CDI, which argued that “we must provide commercial cannabis businesses with multiple, affordable options for insurance as they pursue and maintain state licensure.” CDI supports AB 2568 in part to “promote reliable insurance coverage for all aspects of these cannabis businesses to ensure that these businesses can continue to flourish just like any other business in this state.”

In a separate analysis, the California Senate Committee on Insurance inquired as to whether the bill would achieve the intended result of expanding insurance options for cannabis businesses. It concluded:

“This bill expressly states a protection under California Law for CDI licensees. This protection has been implied since the legalization of recreational cannabis in 2016, and in that same year a federal court gave a nod to insurers that writing cannabis [insurance] is permissible, but only one admitted company has fully waded into the market. On the one hand, insurers are famously risk averse, so this express statement of state law may go a long way for some to take the risk to sell cannabis coverage. But, federal illegality of cannabis could always be the larger barrier to entry for some companies than what the state laws say.”

The Senate report concludes that more study is needed to “consider additional efforts to effectuate the stated goal of growing the domestic market for cannabis insurance.”

Analysis

AB 2568 does not materially change existing California law since providing insurance services to properly licensed California businesses has been legal under state law since at least 2018. The bill, however, is meant to remove any lingering doubt on the topic and to encourage more insurance service providers to enter the market.

As we have previously reported, it is reasonable to conclude that the risk-benefit calculus has adequately shifted to justify entrance into the cannabis market without an unreasonable fear of prosecution. This certainly is true for the insurance industry.

Congress continues to prohibit the Department of Justice and other federal agencies from spending money to prosecute conduct that complies with state medical marijuana laws. Federal law enforcement, meanwhile, has not initiated any prosecution against a plant-touching or ancillary business involved in either adult-use cannabis or medical marijuana where the underlying marijuana business activity was compliant with state law and there was no other independent violation of law.

Despite this favorable outlook, it must be acknowledged that, without a change to the status quo, some degree of theoretical legal risk remains present for any plant-touching or ancillary business in the marijuana industry. Any decision to provide insurance-related services to the cannabis industry must be based on a well-informed understanding of the legal risks and the very challenging operating environment for state-licensed cannabis companies.

For more Food and Drug Legal news, click here to visit the National Law Review.

© 2022 Wilson Elser

Hurricane Coming? Know Your Insurance Policy

As we prepare for Hurricane Ian in Tampa Bay and throughout Florida, one important item on your checklist for both your personal and business hurricane preparation plan should be to be aware of your hurricane/windstorm coverage in your insurance policies. While we all hope to avoid major impact or damage from the storm, even minor damage may be covered under your insurance policy. However, the conditions of your insurance policy may require that you report claims prior to doing anything other than emergency repairs. As such, a review of your policies before the storm may not only be helpful to learn what damages are covered but may also avoid taking steps that compromise what would otherwise be covered claims.

Know Your Deductibles

Florida statutes protect homeowners from unexpectedly declining windstorm/hurricane coverage, but allow insurance companies to set a different (and usually higher) deductible for claims related to hurricanes. These deductibles can be as high as 10% of the policy limits for the property/dwelling coverages and may also apply to claims discovered in the days immediately after the hurricane. Knowing your deductible will allow you to gain a more accurate understanding of your potential claims following a hurricane.

For your commercial lines, you should be sure to review your policy to ensure you have windstorm coverage and again check to see if a higher deductible applies.

Whose Policy Applies and What Coverages Apply

If you are on an active construction site, you likely have a general liability policy. But these liability policies are unlikely to cover the more common losses caused by a windstorm or hurricane. Common hurricane claims are more likely to be covered under a builder’s risk policy. As you prepare your project site for the storm, you should determine who has purchased the builder’s risk insurance and review that policy to see what coverages are available in the event of a loss.

Depending on the terms of your builder’s risk policy, there may be coverage for soft costs such as delays, expedited construction costs, consultant costs and possibly even attorney’s fees. Knowing your coverages before a claim arises will ensure that you are able to receive the insurance benefits that were purchased.

Be Prepared to File a Claim

As many insurance policies require claims to be reported promptly after a loss and even before work is done to repair the loss, being prepared to file a claim before the storm hits will allow you to maximize your chance of recovery under the applicable insurance policies…it may also provide you with some peace of mind in a stressful situation. Good practices include identifying a point person with knowledge of the policy to inventory any potential damage and document the same with photographs, videos, and notes. Also, know who you need to report any claims to and what evidence or documentation is needed to report a claim. Know what types of damages will allow for emergency repairs and what claims need to be reported to the carrier before work can be started. And take pictures of your property before the storm hits so that you can show before and after pictures of the property.

While knowing your available insurance coverage is an important item in your hurricane preparations, the most important thing in any storm is to be safe and take all reasonable precautions to keep you, your loved ones, and those around you safe. From all of us at Hill Ward Henderson, we hope and pray that Hurricane Ian passes without major impact to our community.

For more insurance law news, click here to visit the National Law Review.

© 2007-2022 Hill Ward Henderson, All Rights Reserved

Medical Staff Leaders: 10 Things Your Lawyers Want You to Know

Whether you are new to medical staff leadership or have served in the past and have been called to serve again, there are times when you will need to consult a lawyer who specializes in medical staff matters. While there is nothing simple about medical staff affairs, there are some basic guidelines and protections that your lawyers would like you to know that will make your term easier and make you more effective.

Understand that hospitals and medical staffs are highly regulated organizations with a myriad of laws and standards that must be followed. As a medical staff leader, advisor or medical staff professional, you are leading and advising the professionals responsible for practitioner competence and conduct within the organization. Medical staff law has evolved from the lawyer in the office who would return your call in a week, or fax you a letter, to a specialty area where your lawyer is your partner and there to assist in all aspects of medical staff affairs.

We hope you will benefit from and find the following 10 recommendations make your term or role more informed and manageable.

10. Keep Your Governance Documents Up to Date and Reflective of Actual Practice.

We don’t suggest you must read every page of your governance documents, but you should be sure you know where to look and how to use them. Governance documents include the medical staff bylaws, credentialing manual, hearing plan, rules and regulations, policies and other documents approved by the medical staff and designed to set and guide medical staff processes. Too often we have found the documents will conflict or are missing critical passages. Your medical staff bylaws or medical staff governance committee can be one of the strongest committees in the organization. This is the committee that will annually review the documents and make sure they are internally consistent, reflect actual practice and are relevant to your organization’s practice and clinical services. Remember the medical staff bylaws set the overall guiding principles for the medical staff organization. All other governance documents flow from the foundation of the medical staff bylaws and must be consistent with their principles and mission. Undoubtedly, there will be some inconsistencies but look at those inconsistencies as opportunities to reexamine the principles and consider what is best for your organization. All governance documents should be reviewed in the context of the laws and regulations that require these documents. State and federal laws and regulations set out the basic requirements for the contents of the documents, as do many of the accreditation standards. It is far better to review and revise your governance documents regularly, rather than learn they are deficient during an unannounced survey or regulatory proceeding.

9. Use Your Committees Effectively.

There are two types of committees: those with authority to act and those that are advisory. The committees with authority are generally the Medical Executive Committee (“MEC”) and clinical department committees. All other committees are advisory to the MEC. Advisory committees can develop and recommend policies, rules and clinical practices. Authoritative committees approve policies and rules, take disciplinary action and make recommendations to the MEC. The MEC is the final medical staff authority that submits recommendations for final approval to the governing body. Knowing which committees to use and when is key to leadership success.

8. Know the Scope of Your Authority.

As a leader, you are an agent of the medical staff and the spokesperson for the committee/ department you chair. There are times when you will need to act without the benefit of input from your committee/department. Medical staff bylaws will generally identify the circumstances under which you can act alone and when your action(s) will need to be ratified by the committee. As the chair, you are acting on behalf of the committee/ department between meetings. Do what is needed when needed, within the scope of your authority, but report your actions to the committee/department on a regular basis and be sure your actions are properly recorded in the appropriate minutes. If summary or urgent action is needed, do not hesitate to call a special meeting. You are better off to have the protection of a committee action than to be acting alone or without ratification.

7. Know the Peer Review Protections of HCQIA, Your State and Organization.

Many, if not most, of your actions and the actions of your committees will be covered by federal, state and organizational protections. The Healthcare Quality Improvement Act (“HCQIA”) provides protection from liability for members of a professional review body/ medical staff, who take a professional review action (a) in the reasonable belief the action was in furtherance of quality health care, (b) after a reasonable effort to obtain the facts, (c) after adequate notice and hearing and (d) in the reasonable belief that the action was warranted by the facts. In addition to this federal protection, many states have laws that similarly protect peer review participants, and often, your organization will have an indemnification policy or provision that further protects you and your committee members from damages. Remind your committee participants and members on a regular basis of these protections and that they were specifically designed to encourage peer review by allowing free discussions aimed at improving patient care.

6. Know Your Reporting Obligations.

The National Practitioner Data Bank (“NPDB”) defines the circumstances under which a physician or dentist must be reported. Those include (a) when a professional review action adversely affects their clinical privileges for 30 days or longer or (b) when a physician surrenders clinical privileges while under investigation or in exchange for not conducting an investigation. The failure to report when required to do so can result in the loss of immunities under HCQIA for up to three years, along with a monetary fine. There are many nuances to reporting to the NPDB and we recommend you consult a medical staff attorney who can assist with identifying when to report and what to say. Additionally, each state may have reporting requirements for professional review actions to the state licensing board that exceed the NPDB’s requirements. The state licensing board may also have defined penalties for failure to report. In one state, the knowing failure of a physician leader to report a practitioner to the state licensing board can be considered unprofessional conduct, which can subject the physician leader to state board action.

5. Understand Confidentiality and Peer Review Privilege Protections.

A best practice at the beginning of each meeting is to remind committee members of the importance of maintaining confidentiality. State peer review privileges and protections are often dependent on maintaining confidentiality of the records and proceedings. The failure to maintain confidentiality can act as a waiver of the privilege and permit the introduction of confidential peer review documents and testimony in litigation in the future. Peer review privileges and protections are designed to promote candor in the peer review process. This permits free discussion and identification of opportunities to improve patient care. Without confidentiality and the corresponding privileges and protections, committee members would be reluctant to analyze and frankly discuss areas for improvement in a peer’s clinical care. Obtain information about your state’s peer review privilege and protections and fully understand the circumstances that may cause a waiver, which would permit confidential peer review information to be discussed in open court and stifle important, free-flowing discussion of quality of care at peer review meetings.

4. Know Your Options.

Every professional competence or conduct situation you face will be different. A sound guideline to generally follow is selecting the least restrictive action that will protect patients. Keep in mind that the goal of all peer review is education and remediation. For example, if a practitioner is having complications with robotic surgery, evaluate whether the complications are the result of technical skill, which can be remediated with more practice, or if the complications are the result of poor clinical judgment, which reaches into all areas of performance. In the first case, proctoring, monitoring or an additional educational course may correct the problem. But with the second, the cause of poor judgment is more challenging and may require a further workup, including a fitness for duty evaluation, retrospective review of cases, or an external expert review. Work with your committee and medical staff lawyer to identify all the facts and options to address the problem that has been brought to your attention. In some cases, it may be appropriate to have the issue addressed by the individual’s department or interdisciplinary peer review committee, but in others, the nature of the problem may require the immediate attention of the MEC. In some cases, a discrete referral to your organization’s well-being committee may be appropriate. Regardless, each matter must be carefully and thoughtfully analyzed in light of all the available facts. Then, with all appropriate actions on the table, an informed determination may be made.

3. Act When Indicated but Don’t Shortcut the Process.

. The law and your medical staff bylaws provide for the ability to take emergency action against a practitioner’s privileges when there is a concern of imminent threat to patients or others. What constitutes an “imminent” threat or danger is often the source of hours of discussion and analysis by medical staff lawyers throughout the country. Your legal team is invaluable in working through the facts of a given matter and determining whether a decision for summary suspension is legally sound. If there is a circumstance where emergency intervention via summary suspension is necessary to avoid patient harm after an initial evaluation of the matter, do not hesitate! Take the action to summarily suspend and remove an errant practitioner from the bedside. Afterward, there is time to re-examine the basis for the action and analyze whether continued suspension is necessary to protect patients or others. At that time, it is important to call on your MEC and legal team for their analysis and determination of whether the summary suspension should be upheld.

There are also times when summary suspension will be considered prospectively to address a chronic problem that is rising to an acute stage. The practitioner whose disruptive, bullying and retaliatory conduct has been tolerated may have reached a level where the cumulative effect creates the potential for patient harm because staff, for example, are afraid to call the physician at night about a patient’s health condition, seek clarification of an order, or question whether a procedure is being done on the right side or on the correct patient. Following the medical staff bylaws investigation process will allow for a careful analysis of the reported conduct, which will provide a solid framework for later defense, should it be necessary. That process will almost always involve a committee evaluation of the facts, interview of the practitioner, and a determination of the appropriate next steps. Each of these steps, if followed, will support the action when later scrutinized by a court or jury.

2. Do What is Right for the Patients.

Always put the patients first. There may be procedural missteps during a disciplinary process as the healthcare organization balances the need to protect patients with providing a practitioner due process. However, if the peer review being conducted is based in the foundation of improving patient care and patient safety, courts will generally consider the health care organization’s goals before making a determination that would go against the organization and potentially place patients in harm’s way.

1. Utilize Internal or External Counsel to Navigate Medical Staff Law so You Can Focus on Improving Patient Care.

I (Erin) was asked recently what possible motivation there would be for a physician to enter leadership in a medical staff organization if their role consisted solely of consulting with a medical staff lawyer. In response, I reminded this physician that medical staff leadership and medical staff lawyers work together on challenging matters and daily operations with the lawyer recommending limitations and guardrails and advising on how to avoid legal missteps and pitfalls. This advice from the lawyer enables the leader to focus on monitoring the business of the organization and improving patient care.

Final Take-Aways

Our medical staff organizations need people who are willing to serve as leaders during challenging times when caregivers are stretched thin, suffering burnout and subjected to daily difficulties that can be demoralizing. Strong leaders who are reassured of their legal protections can perform their leadership responsibilities without fear of reprisal when following the advice of their legal counsel. We encourage you to reach out and make your lawyer an integral part of your team so that they can understand your organization and business and provide you the best available advice that will reassure you and other leaders in the organization of the legal protections and immunities.

Article By Erin L. Muellenberg and Sherri T. Alexander of Polsinelli PC

For more healthcare legal news, click here to visit the National Law Review.

© Polsinelli PC, Polsinelli LLP in California

Pediatric Head Injury and Bicycles

There are few more memorable achievements for a child growing up than when they first learn to ride a bike. It’s a great moment. And while as a parent you can be proud of them, it’s natural to feel a little nervous. Especially if you look at injury statistics about children and bicycles. But the good news is that helmets make a big difference—research shows that helmets could have prevented 85% of all bicycle-related mortality.

Helmets Prevent Pediatric Head Injury

According to a study from Injury Epidemiology, younger children are at greater risk of bicycle injury than adults, yet their helmet use is low. Less than half of children age 14 and under usually wear a helmet when riding their bikes.

But if a child is wearing a helmet in an auto crash, it can save their life. In that same study, 226 bicyclists were treated for injuries caused by a moving vehicle. With a median age of 11, the helmeted cyclists were less likely to sustain a head injury than kids who weren’t wearing helmets. And the kids who were injured while wearing helmets were less likely to be diagnosed with a more severe head injury.

Without a doubt, when your child wears a bike helmet, they are less likely to receive head injuries. And if your child’s head does get injured when they’re wearing a helmet, it will likely be less severe.

Helmet Laws in New Jersey, New York, and Pennsylvania

State lawmakers have reacted to these statistics and enforced the use of helmets for children riding bicycles. In the state of New Jersey, children must wear helmets. The New Jersey Motor Vehicles and Traffic Regulation laws, under Title 39:4-10.1, state that “anyone under 17 years of age that rides a bicycle or is a passenger on a bicycle or is towed as a passenger by a bicycle must wear a safety helmet.” So whether your child is a passenger on your bicycle or riding their own, they must be wearing a helmet.

The rules are similar in the state of New York, where any child under the age of 14 must wear a helmet on a bike. Children from ages 1-4 must wear a certified bicycle helmet and sit in a specially designed child safety seat.

While the age is lower for required helmet use in the state of Pennsylvania, it’s still a law. Any child under the age of 12 must wear a helmet while riding their bicycle, riding as a passenger, or in an attached seat or trailer. Pennsylvania strongly recommends that every person wear a helmet, no matter their age.

New Jersey Bike Safety Programs

Starting in 2014, SHAPE America published Bikeology, a curriculum designed for physical education teachers to teach young children bike safety. Anyone can download and use the curriculum to teach their own children or kids in their neighborhood.

The Bikeology program works. It was created by consulting physical and bicycle education specialists, as well as injury prevention experts. The curriculum was put through vigorous testing. Nine teachers and 300 students pilot-tested the curriculum to ensure that it secured bike safety.

Tips to Keep Your Child Safe While Bicycling

The number one way to keep your child safe while bicycling is by wearing a helmet. On top of that, here are some other safety tips from the United States Department of Transportation:

  • Check that your child’s bike fits them properly

  • Before riding, inflate tires fully and test the brakes

  • Put your child in bright, fluorescent colors while riding so they are easily seen

  • Teach your children to ride their bikes with both hands on the handlebars

  • Have children look out for any obstacles in the road, like potholes or broken glass

Article By Domenic B. Sanginiti, Jr. of Stark & Stark

For more personal injury legal news, click here to visit the National Law Review.

COPYRIGHT © 2022, STARK & STARK

Medicare CERT Audits and How to Prepare for Them

CERT audits are an unfortunate part of doing business for healthcare providers who accept Medicare. Failing the audit can mean the provider has to pay back overcharges and be subjected to increased scrutiny in the future. 

The best way to be prepared for a CERT audit is to have a compliance strategy in place and to follow it to the letter. Retaining a healthcare lawyer to craft that strategy is essential if you want to make sure that it is all-encompassing and effective. It can also help to hire independent counsel to conduct an internal review to ensure the compliance plan is doing its job.

When providers are notified of a CERT audit, hiring a Medicare lawyer is usually a good idea. Providers can fail the audit automatically if they do not comply with the document demands.

What is a CERT Audit?

The Comprehensive Error Rate Testing (CERT) program is an audit process developed by the Centers for Medicare and Medicaid Services (CMS). It is administered by private companies, called CERT Contractors, which work with the CMS. Current information about those companies is on the CMS website.

The CERT audit compares a sampling of bills for Medicare fee-for-service (FFS) payments, which were sent by the healthcare provider to its Medicare Administrative Contractor (MAC), against medical records for the patient. The audit looks at whether there is sufficient documentation to back up the claim against Medicare, whether the procedure was medically necessary, whether it was correctly coded, and whether the care was eligible for reimbursement through the Medicare program.

Every year, the CERT program audits enough of these FFS payments – generally around 50,000 per year – to create a statistically significant snapshot of inaccuracies in the Medicare program.

The results from those audits are reported to CMS. After appropriately weighing the results, CMS publishes the estimated improper payments or payment errors from the entire Medicare program in its annual report. In 2021, the CMS estimated that, based on data from the CERT audits, 6.26 percent of Medicare funding was incorrectly paid out, totaling $25.03 billion.

The vast majority of those incorrect payments, 64.1 percent, were marked as incorrect because they had insufficient documentation to support the Medicare claim. Another 13.6 percent were flagged as medically unnecessary. 10.6 percent was labeled as incorrectly paid out due to improper coding. 4.8 percent had no supporting documentation, at all. 6.9 percent was flagged as incorrectly paid for some other reason.

The CERT Audit Process

Healthcare providers who accept Medicare will receive a notice from a CERT Contractor. The notice informs the provider that it is being CERT audited and requests medical records from a random sampling of Medicare claims made by the provider to its MAC.

It is important to note that, at this point, there is no suspicion of wrongdoing. CERT audits examine Medicare claims at random.

Healthcare providers have 75 days to provide these medical records. Failing to provide the requested records is treated as an audit failure. In 2021, nearly 5 percent of failed CERT audits happened because no documentation was provided to support a Medicare claim.

Once the CERT Contractor has the documents, its team of reviewers – which consists of doctors, nurses, and certified medical coders – compares the Medicare claim against the patient’s medical records and looks for errors. According to the CMS, there are five major error categories:

  • No documentation

  • Insufficient documentation

  • Medical necessity

  • Incorrect coding

  • Other

Errors found during the CERT audit are reported to the healthcare provider’s MAC. The MAC can then make adjustments to the payments it sent to the provider.

Potential Repercussions from Errors Found in a CERT Audit

CERT audits that uncover errors in a healthcare provider’s Medicare billings lead to recoupments of overpayments, future scrutiny, and potentially even an investigation for Medicare fraud.

When the CERT audit results are brought to the MAC’s attention, the MAC will adjust the payments that it made to the provider. If the claims led to an overpayment, the MAC will demand that money back.

But Medicare Administrative Contractors (MACs) can go further than just demanding restitution for overpayments. They can also require prepayment reviews of all of the provider’s future Medicare claims, and can even suspend the provider from the program, entirely.

Worse still, CERT audits that uncover indications of Medicare fraud may be reported to a law enforcement agency for further review. This can lead to a criminal investigation and potentially even criminal charges.

Appealing a CERT Audit’s Results

With penalties so significant, healthcare providers should seriously consider hiring a lawyer to appeal the results of a CERT audit.

Appeals are first made to the MAC, requesting a redetermination of the audit results. The request for redetermination has to be made within 120 days of receiving notice of the audit results. However, if the provider wants to stop the MAC from recouping an overpayment in the meantime, it has to lodge the request within 30 days.

Providers can appeal the results of the redetermination, as well. They can request a reconsideration by a Qualified Independent Contractor within 180 of the redetermination, or within 60 days to stop the MAC’s recoupment process.

Providers who are still dissatisfied can appeal the case to an administrative law judge, then to the Medicare Appeals Council, and finally to a federal district court for review.

How to Handle a CERT Audit

The best way to handle and to prepare for a CERT audit is to hire Medicare audit attorneys to guide you through the process. It would also help to start internal audits within the company.

For providers who have been notified that they are under an audit, getting a lawyer on board immediately is essential. An experienced healthcare attorney can conduct a thorough internal investigation of the claims being audited. This can uncover potential problems before the audit points them out, giving the healthcare provider the time it needs to prepare its next steps.

Providers who are not currently being audited can still benefit from an attorney’s guidance. Whether by drafting a compliance plan that will prepare the provider for an inevitable CERT audit or by conducting an internal investigation to see how well a current compliance plan is performing, a lawyer can make sure that the provider is ready for an audit at a moment’s notice.

Taking these preventative steps soon is important. CMS put the CERT audit program on halt for the coronavirus pandemic, but that temporary hold was rescinded on August 11, 2020. While the CMS has reduced the sample sizes that will be used for its 2021 and 2022 reports, it will likely go back to the original numbers after that. Healthcare providers should prepare for this increased regulatory oversight appropriately.

Article By Dr. Nick Oberheiden of Oberheiden P.C.

For more litigation legal news, click here to visit the National Law Review.

Oberheiden P.C. © 2022

How Technological Advances Possibly Affect Automobile Insurance Policy Holders in New Jersey

In the 1970’s, “no-fault” insurance laws were enacted in New Jersey and several other states in response to criticism regarding the time-consuming and costly process of determining who was at-fault when an accident occurred. 

No fault insurance laws sought to streamline the claims process.  One key feature allowed insurers to pay for medical treatment of their injured policyholders.  This allowed for timely treatment and provider payment.  NJ automobile insurance policies offered up to $250,000 in coverage for medical treatment.  Recent changes in law now allow insureds to choose less coverage for medical treatment.

Further, recent technological advances change the way insurance customers choose coverage online.  While customers are served by the ease, flexibility, and pricing of policies through internet platforms, some adverse consequences naturally flow.  In this article, we discuss the changes, the consequences and subsequent response from participants and 3rd parties to address these outcomes.

Background

In the 1960’s, many more vehicles were entering into American roadways than in previous decades.  Baby boomers were coming of age and more cars were sold than ever before.  A natural consequence was automobile accidents and as a result, the necessary adjudication of which party caused the collision.

Insured and insurers alike expressed criticism of the process which consisted of petitioning the civil court system to resolve disputes.  In response, state legislatures adopted laws designed to streamline the process, and the 1970’s, many states adopted policies allowing injured accident victims to recover damages from their own auto insurance policies.

Almost half of the United States now have similar laws where policyholders are entitled to “benefits” from their own policies.  This of course means insurers are on the hook for more compensation, a fact they obviously utilized to lobby legislatures to place certain restrictions on the right to sue for damages not only against the insurer but against the tortfeasor as well.

One of the “trade-offs” made by the legislation was injured parties giving up some of their rights to sue under certain circumstances.

New Jersey No-Fault Law and Application

New Jersey’s no-fault laws have been amended throughout the years.  One of the most profound changes to the law occurred in 1998 with the passage of the Automobile Insurance Cost Reduction Act (“AICRA”).  This change in law gave NJ residents the opportunity to purchase a standard or basic policy.

The standard policy is much like a typical no-fault policy containing Personal Injury Protection (PIP) which pays for medical treatment (more on this in a moment); liability coverage for injury or property damage to another; and uninsured/underinsured coverage which kicks in if the at-fault driver has no or insufficient coverage.

A basic policy provides minimum coverage in certain areas such as personal liability, property damages, and medical benefits.  Because having automobile insurance is mandatory, the purpose of the basic policy was essentially to afford an option to those who simply wanted to follow State mandates.

With regard to the right to sue restrictions, a New Jersey insured was and still is offered a choice – give up the right to sue for “non-permanent” injuries (those with no objective medical evidence of permanency) and have the premium reflect a savings or retain the right to sue (zero threshold) and pay a much higher premium to offset the cost.  Further, one of the things insurers had to trade was that victims would have $250,000 worth of PIP coverage to pay for medical expenses.

Changes to NJ No-Fault Insurance and Consequences

The AICRA changes have been in effect for years.  Since that time, the internet altered the manner in which policyholders interact with insurers when choosing coverages.

The internet streamlines the sales process for many businesses.  Insurance is no different.  What is troubling about this streamlining is the lack of guidance users receive from insurance companies regarding their choice of coverage.

For example, one website asks you to choose between:

  • More Affordable
  • Popular Coverage
  • More Coverage

It is not so much that the choices are misleading – they aren’t.  However, other than these descriptions, there is little explanation of their consequences.  If you choose the “more affordable” option, you’re led to a screen that explains the coverages in more detail.

Do people read all the information?

Can they understand the language even if they do decide to read it?

Could it be that the ease of picking the cheapest option is too much to overcome?

Consider this description from a law firm in Maryland:

“PIP is easy to overlook, especially in this age of online insurance applications. It’s one box out of 200 that you can check. The application will say something like, “Waive PIP and save $57.” The applicant clicks and saves 57 bucks…when in reality, they’ve lost $2,500 if they get in an auto accident. Too many Maryland policyholders waive their PIP coverage. It’s really a good coverage not to waive. “

Likewise, in New Jersey’s Standard Coverage Selection Form, used by insurance companies as a questionnaire to draft a proposed policy, the PIP limits selection form actually lists the savings from choosing lower limit PIP coverage.  Remarkably, no such comparison exists on the Form for reductions in Bodily Injury/Liability limits.

In the old days, an insurance agent was tasked to explain various coverages.  A real human being who would answer questions depicting real word scenarios involving accidents.  This obviously allowed for more informed choices.

Now, a great deal of selling is done online.  Many cost-aware customers might respond only to a difference in price.  Many can and do simply choose the cheaper alternative.  This could cause problems later if an accident occurs and a claim is made.

A Potential Problem with Minimal Coverages

Consider a situation where the insured has the minimum coverages for PIP – $15,000.  The insured sustains a back injury and begins treatment.  The Emergency Room visit totals $6,000 complete with 3 level CT scans which reveal problems with the upper and lower back.  The insured then follows up with an orthopedic who requests MRI scans on the back which equal another $2,500.  Add in some physical therapy and the $15,000 PIP limits are exhausted in a couple of months.

None of this is a problem if the scans fail to reveal a major issue.  A soft tissue injury is serviceable under this scenario in that the insured gets treatment and is on the way to recovery.  If the scans reveal problems, such as multiple herniated discs and impingement on the spinal cord, treatment options become a tricky proposition.

The treatment is tricky because the benefits are gone.  Now the injured party must seek other options – some of these can be costly.

Responding to the Need

In response to the above, providers, lawyers and other market participants stepped in to serve the need for accident victims to secure medical treatment.  The following are some of those alternative payment methods.

Letters of Protection

Letters of protection (LOP’s) are agreements between the injured party’s attorney and a medical provider that the medical bills will be “protected” by the proceeds of any settlement received.  In return for the attorney’s promise to honor the lien against file, medical providers will perform a variety of treatments to the plaintiff, including surgery.  Surgery is often a deciding factor in the plaintiff’s ability to secure the treatment because normally, the case’s settlement value is increased after the procedure.

Use Existing Health Insurance to Pay Bills After PIP is Exhausted

In some instances, plaintiffs can use their own health insurance to pay for accident medical bills.  In NJ, insureds can choose which coverage is primary.  However, some health insurance policies exclude coverage for car accidents.  The standard health insurance limitations apply as well.  These include the need to pay deductibles, co-payments and sometimes co-insurance.  Further, there may be limits on the choice of medical provider.  Some policies require doctors to be “in network”.

Litigation Funding

In many cases, litigation funding is used to pay for much-needed medical treatment.  Originally utilized to bridge the gap between accidents and settlement, litigation funding sought to alleviate the need for plaintiffs to accept low-ball settlement offers simply because they were struggling financially.  Because lawsuit funding is the sale of a portion of the future proceeds of a personal injury case, they are sometimes used to pay for surgical or other procedures when there is no coverage available.

Technological Advances and Practical Trade-offs

Technology has certainly made life more convenient over the years.  Conveniences exist today that weren’t in our collective consciousness 20 years ago.  Consider being able to speak via video conference to someone on the other side of the world for FREE, when the toll charges for an overseas telephone call were many dollars only a short time ago.

But technology can cut both ways.  The ease with which insurance consumers can pick coverages that may or may not be in their best interest may be one such trade-off.  Thankfully, market participants (doctors, lawyers, litigation finance companies) step in and address the outcomes which naturally arise.  Free markets usually perform this function admirably.

Article By Paul M. Coppola of Fair Rate Funding

For more insurance and reinsurance legal news, click here to visit the National Law Review.

© Copyright 2022 Fair Rate Funding