FTCA Update/Lessons Learned
12th Annual 2005 Region IX
Management Training Conference
Burbank, California
September 27, 2005
Martin J. Bree
Senior Partner
Triton Group, LLC.
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
Triton Group
First Source of FTCA Program Information
o Triton Group
o 227 Hamburg.
o Pompton Lakes, NJ 07442
o HRSA Contract No. 232-00-0097
o Roger Fuydal
o 866-FTCA-HELP - Toll Free
o (866-382-2435) Marty Hiller (Free Clinics)
o 973-831-8395 (Fax) 216-382-4150
o tritongp@optonline.net mhiller862@hotmail.com
o Martin J. Bree
o 215-861-4373
o 215-861-4391 (fax)
o 856-625-8638 (cell)
o
November 10, 2011 mbree@hrsa.gov. Triton Group, LLC
HRSA Contract no. 232-00-0097
Today’s workshop will cover:
Medical Malpractice 2005
How the Program Works for Health Centers
Limitations of Coverage
Credentialing and Privileging
Program Value
Claim Status
Risk Management
HIPAA Section 194
Questions
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
Medical Malpractice 2005
Med Mal premiums increase
40% 2002-2003
37% 2003-2004
Average Indemnity Payments (per PIAA)
1996 - $196,392
1997 - $223,167
1998 - $232,178
1999 - $253,479
2000 - $285,354
2001 - $295,610
2002 - $309,381
2003 – $328,757
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
Medical Malpractice 2005 (cont.)
Increased premiums particularly affect:
Radiology
Obstetrics/gynecology
Neurosurgery
Emergency Medicine
The percentage of indemnity payments over
$1 million has doubled since 1997 reaching
2.9% in 2003
Med Mal losses have been increasing 19
times faster than other tort losses (AIG)
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
Medical Malpractice 2005
Obstetrics Claims
Most paid claims of any specialty – 36% of
closed claims result in payment
Highest % of paid claims over $1 million –
27%
Average indemnity for 2001 – 2003 was
$440,658
Neurologically impaired newborns second
most prevalent medical condition resulting in a
claim after breast cancer
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
Medical Malpractice 2005 (cont.)
General and Family Practice for 2001 - 2003
27% of closed claims result in payment
Average indemnity $276,171
Internal Medicine for 2001 - 2003
25% of closed claims result in payment
Average indemnity $307,024
Pediatrics for 2001 – 2003
31% of closed claims result in payment
Average indemnity $389,658
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
Medical Malpractice 2005 (cont.)
Proposed solutions
Caps on non-economic damages
Limitations on venue shopping
Requiring “Certificates of Merit”
Better underwriting
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
How the Program Works for Health
Centers
A scheme that provides immunity from
lawsuit.
Appears similar to an occurrence malpractice
policy.
Program in existence for 13 years.
Very successful in terms of savings for health
centers and coverage of health centers and
staff.
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
How the Program Works for Health
Centers (cont.)
Under FSHCAA Health Centers are eligible to
be deemed “federal employees”.
Provides immunity from lawsuit alleging
medical malpractice.
Plaintiff’s only remedy is claim under Federal
Tort Claims Act (FTCA).
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
How the Program Works for Health
Centers (cont.)
Who, what , when where?
Who is covered - Relationship to Health
Center.
What is covered – medical malpractice.
Where is it covered – scope of project.
When is it covered – scope of employment.
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
How the Program Works for Health
Centers (cont.)
Who is Eligible to be Deemed:
Community Health Centers [section 330 (e)].
Migrant Health Centers [section 330 (g)].
Health Care for the Homeless [section 330
(h)].
Public Housing Primary Care [section 330 (i)].
School-based Health Centers [Section 330].
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
How the Program Works for Health
Centers (cont.)
Who is covered - people
Employees.
Officers.
Directors.
Governing board members.
Contractors (some, not all).
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
How the Program Works for Health
Centers (cont.)
Who is covered - Employees
All employees, full time or part time.
Volunteers are not employees.
Employees get a W-2 at end of year.
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
How the Program Works for Health
Centers (cont.)
Who is covered - Contractors
Any full time contract provider (over 32 1/2 hours per
week).
Part time contract provider of services in the fields of
family practice, ob-gyn, general internal medicine, or
general pediatrics.
Contract must be between the deemed health center
and the individual provider.
Contracts between the deemed health center and a
corporation (including Professional Corporations) are
not covered.
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
How the Program Works for Health
Centers (cont.)
Contractors
42 U.S.C. §233(g)(1)(A) “…any contractor of
such an entity who is a physician, or other
licensed or certified health care practitioner”.
42 U.S.C. §233 (g)(5) “an individual may be
considered a contractor”.
El Rio Case
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
How the Program Works for Health
Centers (cont.)
What is covered?
Medical malpractice.
More specifically, medical, surgical, dental and
related activities (if within the scope of
employment and scope of project).
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
How the Program Works for Health
Centers (cont.)
Where is it covered – within the scope of project
Only incidents that occur within the scope of the project
are covered. (See Policy Information Notice 2002 - 07).
Scope of Project are the activities described in the
grant application that are approved by Public Health
Service via Notice of Grant Award.
An existing Scope of Project cannot be changed in a
grant application. There is a separate process.
A grant award for a new section 330 activity does
change the Scope of Project.
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
How the Program Works for Health
Centers (cont.)
When is it covered
Coverage is only for acts that are within the
scope of employment of the covered individual
No Moonlighting
Acting on behalf of the deemed entity
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
How the Program Works for Health
Centers (cont.)
Procedure
Plaintiff files administrative claim against the
United States.
DHHS reviews claim and may deny it, pay it or
offer a settlement.
If DHHS denies claim plaintiff may file suit.
If DHHS does not act on claim within six
months plaintiff may file suit.
When suit is filed case transferred to DOJ.
DOJ may attempt to settle suit otherwise it
goes into litigation.
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
How the Program Works for Health
Centers (cont.)
Procedure
Plaintiffs often file suit in state court.
What to do:
Immediately fax complaint and deeming letter to:
Lisa Barsoomian
Department of Health and Human Service
Office of General Counsel (OGC)
202-619-2922 (Fax)
202-619-2155 (Voice)
Have health center attorney request extension of time
to reply.
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
How the Program Works for Health
Centers (cont.)
Touhy Regulation
Medical Malpractice cases only!
Affects deemed health centers only.
Requests for testimony where the United
States, the health center or its providers are
not a party.
Health center provider must have permission
of HRSA administrator to testify.
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
How the Program Works for Health
Centers (cont.)
Touhy Regulation
Policy Information Notice 2001-19.
Submit request for deposition or testimony to
DHHS/OGC (fax to 202-619-2922).
HRSA Administrator will approve or deny.
If approved representation may be provided by
DOJ.
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
How the Program Works for Health
Centers (cont.) – Potential Problems
Contracts.
Sub-Recipients.
Scope of Project.
Billing Arrangements.
Americans with Disabilities Act, Rehabilitation
Act, Civil Rights Act.
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
How the Program Works for Health
Centers (cont.)
Important Issues
Non-health center patients – a potential problem.
Insurance requirements of hospitals and Health
Maintenance Organizations.
National Practitioner Data Bank.
Deeming Renewal .
Credentialing – a critical issue.
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
Non-Health Center Patients
Federal Register Notice September 25, 1995
(Volume 60 Number 185) page 49417 – 49418.
Hospital On-Call Requirements.
Cross Coverage Arrangements.
Community Activities.
Other situations require a “Particularized
Determination” See 99-08.
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
Insurance Requirements of Hospitals
and HMO’s.
42 U.S.C. §233(j) - Remedy for denial of
admitting privileges to certain health care
providers.
42 U.S.C. §233(m) - Application of coverage
to managed care plans.
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
National Practitioner Data Bank
(NPDB)
HRSA Participates in the NPDB.
42 U.S.C. §401 – 431.
Assistant Secretary of Health elects to require
PHS agencies to report – October 1987.
http://www.npdb-hipdb.com.
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
Other Insurance
Gap or Wrap-around: covers medical
malpractice not covered by FTCA.
Volunteers
Outside Scope
Contracts with corporations
Contracts with part time specialists
Tail Insurance
General Liability Insurance
Directors and Officers Liability
Proof of malpractice coverage – Triton Group
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
Deming Applications
New organizations (never deemed before):
Submit application found in PIN 99-08 to
BPHC (currently Susan Lewis in Philadelphia).
Deemed entities at end of project period
(competing continuations):
Submit application found in PIN 99-08 to
BPHC (currently Susan Lewis in Philadelphia).
Deemed entities at end of budget period
(non-competing continuations):
Application is part of single grant application.
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
Program Value
Malpractice Premium Savings
Study conducted by Princeton Insurance
Company.
Premiums calculated for 2002
Used Uniform Data System (UDS) data for
deemed Health Centers
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
Program Value
Malpractice Premium Savings Study
Methodology
Used Occurrence Premiums with $1m/3m limits.
Premiums include 25% for taxes, profits,
commissions, etc.
Each deemed Health Center rated by its specific
territory.
Rates based on Full Time Equivalents by specialty.
Premium increased by 10% to cover corporation and
allied personnel.
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
Program Value
Malpractice Premium Savings Study
Results
2002 Savings for deemed centers -
$164,000,000
Extrapolating from 2002 and 1999
studies: total savings since 1993
$1 billion
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
Claim Status - National
Oct. 1994 thru Dec. 2004 - 1546 Claims filed
against the United States.
Closed Claims - approximately 55% of total.
Paid Claims – approximately 30% of closed
claims.
Avg. cost per paid claim - $370,000.*
Avg. cost per closed claim - $114,000*
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
Health Center Claims per Month
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
Health Center Loses per Year
60,000,000
50,000,000
40,000,000
30,000,000
20,000,000
10,000,000
0
94
95
96
97
98
99
00
01
02
03
04
19
19
19
19
19
19
20
20
20
20
20
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
National Health Center Data
Frequency & Severity Totals by Region
250 $60,000,000
(Total Paid on Settled Claims or Reserves
$50,000,000
Recommended on Pending Claims)
200 209 Frequency - # of Claims
Sum of Reserve/Paid
Sum or Reserve/Paid
# of Claims (Frequency)
$40,000,000
150
145
136 $30,000,000
125
100 106
$20,000,000
80
50
54 $10,000,000
38
28
16
0 $0
01 02 03 04 05 06 07 08 09 10
November 10, 2011 Region Number Triton Group, LLC
HRSA Contract no. 232-00-0097
National Health Center Data
Frequency of Adverse Outcome by Region
All Others Combined
Blindness/Ophthalmic injury
Loss/damage to tooth/dental prosthes Region 01
Skeletal injury Region 02
Reduced life expectancy Region 03
Adverse Outcome
Infection Region 04
Emotional only Region 05
Delay in recovery Region 06
Other nerve damage
Region 07
Fetal death
Region 08
Skin/tissue/muscle injury
Region 09
Brain damage
Region 10
Loss of/damage to limb
Exacerbation of disease/condition
Loss of/damage to organ
Death
0 20 40 60 80 100 120 140 160 180 200 220 240
# of Claims (Frequency)
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
National Health Center Data
Frequency of Specialty by Region
GENERAL SURGERY
Region 01
Region 02
SPECIALTY NOT IDENTIFIED
Region 03
GENERAL PRACTITIONERS Region 04
Physician Specialty
Region 05
OTHER SPECIALISTS
Region 06
PEDIATRICS Region 07
Region 08
DENTISTS
Region 09
INTERNAL MEDICINE-MINOR SURGERY Region 10
FAMILY PHYSICIANS (PRACTICE)
OBSTETRICS-GYNECOLOGY
November 10, 2011 Triton Group, LLC
0 30 60 90 120 150
HRSA
# of Claims (Frequency) Contract no. 232-00-0097
Health Center National Data
Frequency of Occurrence by Region
Diagnosis Related
Obstetrics Related
Treatment Related
Medication Related Region 01
Type of Occurrence
Region 02
Surgery Related
Region 03
Region 04
Miscellaneous
Region 05
Monitoring Region 06
Region 07
Anesthesia Related
Region 08
Intravenous & Blood Products Related Region 09
Region 10
Biomedical Equipment/Product Related
November 10, 2011 Triton Group, LLC
0 25 50 75 100 125 150 175 200 225 250 275 300 325
# of Claims (Frequency) HRSA Contract no. 232-00-0097
Health Center National Data
Breakdown of Diagnosis Related Claims-by Count
(311 Claims)
Improper performance of Delay in diagnosis
test 48.23%
0.32%
Wrong diagnosis or
misdiagnosis
10.93% Failure in Diagnosis
39.55%
Diagnosis Related
(NOC)*
0.96%
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
Health Center National Data
Breakdown of Obstetrics Related Claims-by Count
(224 Claims)
Failure to manage Improperly performed
pregnancy vaginal delivery
22.77% 17.41%
Retained foreign body
vagina / uterine
2.23%
Improperly managed
labor
Wrongful life / birth 14.29%
3.57%
Improper choice of
Failure to identify / treat
delivery method
fetal distress
11.61%
4.46%
Obstetrics related (NOC)*
Delay in tmt of fetal 10.71%
distress
5.36%
Delay in delivery
November 10, 2011 (induction or surgery) Triton Group, LLC
7.59%
HRSA Contract no. 232-00-0097
Health Center National Data
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
Health Center National Data
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
Health Center National Data
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
Risk Management
Health Centers are expected to use a portion
of savings to provide risk management
services. (PIN 99-08 Para. XVIII).
NACHC – Risk Management Technical
Assistance line – 517-703-8464.
Inspector General report on risk management
in health centers.
Triton Group – can assist you in finding
appropriate risk management services – 866-
FTCA-HELP.
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
Risk Management
Credentialing and Privileging
Medical Records
Informed Consent
Birth Injuries
Tracking Systems
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
Credentialing and Privileging
PIN 2002-22
Credentialing and privileging required of all
licensed or certified health care practitioners.
Process for Licensed Independent
Practitioners (LIPs) generally mimics JCAHO.
Non-LIPs requires primary source verification
of only license or certification.
Volunteers included.
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
Credentialing and Privileging
Verification of the education, training, and
experience of provider.
Privileging
“The process of authorizing a licensed or
certified health care practitioners specific
scope and content of patient care services”
or
Assessment of the clinical competence of the
provider to do the job expected..
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
Medical Records
Legibility
Permanent archive of patient’s treatment.
Communication tool between providers.
Legal defense tool.
Completeness
More is better than less.
Organization
Chronological.
Dividers.
Medication summary sheets/problem lists.
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
Medical Records
Security
Storage.
Correction.
Release of information.
Signatures
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
Informed Consent
Your don’t “give” informed consent. You “get”
informed consent.
It is a communication process, not a form that
the patient signs.
Components
Competency.
Information.
Written (in appropriate language).
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
Birth Injuries
Biggest component of losses under Health
Center FTCA program.
Utilize protocols.
Shoulder Dystocia Drills.
Clinical competencies.
VBACs?
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
Tracking Systems
For all tests? Why not.
Electronic vs. manual.
System should be redundant.
QI testing of systems.
How do we track referrals?
Telephone calls.
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
HIPAA Section 194
Volunteers in Free Clinics
Provides Med Mal protection to “Volunteers in
“Free Clinics”
Volunteer and free clinic are specifically
defined in the statute
Does not cover the free clinic corporation nor
the free clinic employed staff
Free clinic may not accept any third party
reimbursement
Must give notice to patients on limitations of
liability
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
Federal Staff
Aida Stark, FTCA Program Director
301-594-4442
aida.stark@hrsa.hhs.gov
Susan Lewis
215-861-4373
215-861-4391 (fax)
slewis@hrsa.gov
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097
FTCA HELP
Triton Group
Martin J. Bree
215-861-4373
215-861-4391 (fax)
mbree@hrsa.gov
Roger Fuydal
866-FTCA-HELP (toll free)
866-382-2435
Tritongp@optonline.net
Triton Group
227 Hamburg Tpke.
Pompton Lakes, NJ 07442
November 10, 2011 Triton Group, LLC
HRSA Contract no. 232-00-0097