Healthcare Malpractice Claims: 2016 Update

Table of Contents

Introduction 2 The Graying of American and the Impact of Elder Care 3

Protecting the Elderly 7 Traditional Tort Claims 7 Statutory Damage Claims 7

Conclusion 8 Emerging Risks 8 Cyber Attacks 8 Electronic Medical Records 11 An Update on Damage Mitigation Measures 13 Damages Caps 13 State Compensation Funds 14 Challenging Economic Damages via the Affordable Care Act 15 Apologies, Transparency and Communication 18 Negotiation Techniques 20 Conclusion 21 Citations 22 Appendix i - xxxvii

Introduction

We’re pleased to offer our second annual treatise on Healthcare Malpractice Claims in the United States. While it is always a challenge to select relevant areas for discussion, we believe we have selected topics of particular interest to the Healthcare community.

At American International Group (AIG), we greatly value our relationship with our valued clients. Now more than ever, our partnership with our clients provides the basis for open exchanges of ideas and information; a continued commitment to patient and resident safety; and a continued commitment to justly resolve claims. We hope you find some of the topics in this edition insightful, and look forward to the opportunity to work with you. No person is an island. I’d like to take this opportunity to thank the following contributors, without whom this treatise would never have been possible: Amanda Stobaugh, Esq., AIG Healthcare Malpractice Claims (Dallas, TX.); Timothy Dingilian, Esq., Jackson & Campbell (Wash. D.C.); Jeff Carlisle, Esq., Lynberg & Watkins (Los Angeles, Ca.); Richard Montes, Esq., Mauro, Lilling, Naparty (Woodbury, N.Y.); and Jonathan Rubin, Esq., Kaufman, Borgeest & Ryan (New York, N.Y.) Thank you,

Marco L. Spadacenta1

Senior Vice President, Healthcare Malpractice Claims AIG Claims, Inc./Property Casualty 101 Hudson Street, 28th Floor Jersey City, N.J. 07302 Tel: 201-631-7075 Cell: 917-566-9752 Marco.Spadacenta@AIG.com www.AIG.com

The Graying of America and the Impact on Elder Care In 1964, Jack Weinberg coined the phrase “Don’t trust anyone over 30.”2 Well, Jack would have a tough time finding anyone to trust in the 21st Century. Over the next 35 years, largely driven by the aging “baby boomer” generation (born 1945-1964), the number of individuals in the United States aged 65 and older is expected to increase from 46 million to 88.5 million persons.3That means by 2050, 20% of America’s population, which is expected to grow to 439 million, will be 65 or older.4

OlderPopulationGrowth,1960-2050

At least 70 percent of baby boomers are expected to require some form of elder care services during their lifetime.5 These Elder care providers typically fall into three distinct categories: (1) At Home care, which refers to individuals who live in their own home, and receive care from family, friends, volunteers, or hired professionals.6; (2) Residential care (assisted living), which refers to individuals who reside in facilities that offer basic adult services such as meals, housekeeping, medication assistance, transportation, entertainment, and round-the-clock oversight.7; and (3) Nursing home care which refers to facilities that provide live-in care to persons with severe medical conditions, advanced age, and disabilities.8 Why will such a large percentage of baby boomers need services? Compared with previous generations, baby boomers are more likely to be divorced9; have fewer children10; and have daughters in the workforce, rather than staying at home11 - all factors that make family care less likely. The current elder care system is not presently equipped to handle these projected increases in volume. Expansion will be paramount. But with expansion come challenges such as new construction of state of the art facilities, as well the; hiring and training of medical staff and support staff.

The majority of nursing homes in the U.S. were constructed in the 1960s, and, according to some, do not provide the environment or atmosphere currently sought by potential residents.12 Private financing of new nursing home construction has become more difficult to obtain than it had been in prior decades.13 Between 2007 and 2011, the number of under-construction nursing home units declined by one-third.14 The industry also faces stiff challenges with respect to staffing. A 2011 report by the University of California – San Francisco concluded that poor quality of care is endemic in many nursing homes.15 Part of the reason for the lack of appropriate care is that, relatively speaking, there are not enough adults to care for the elderly. AARP estimates that there are currently approximately 7 people aged 45-64 to care for each person aged 80 or older.16 By 2030, that ratio is expected to decline to 4:1, and by 2050 to fewer than 3:1.17 It has been suggested that in order to attract more people to the caregiver profession, there needs to be better supervision and training; more opportunities for advancement; and higher wages.18 Perhaps more importantly, training and supervision are key to improving care and promoting patient safety.19 The frail elderly in particular are vulnerable to falls, delirium, infections, adverse drug reactions, and pressure ulcer development.20 A review of Elder Care claims resolved by AIG between January 2012 and June 2016 shows that the greatest number of claims emanate from some form of patient neglect- failure to monitor the patient.

70%

5.60%

9.40%

4.20% 10.80%

ClaimType

FailuretoMonitorPatient

Physical/SexualAbuse

TreatmentRelated

MedicationRelated

Other

While the average payout for Failure to Monitor claims ranks lowest in both indemnity and legal paid as compared to the other three most frequent elder care claim categories, the cumulative figures far out strip the other three combined. (See figure below) Claim Type

Average Indemnity Paid (in thousands)

Average Legal Expense Paid (in thousands)

Total Indemnity Paid (in millions)

Total Legal Paid (in millions)

Failure to Monitor $155.8 $41.5 $64.2 $15.7

Treatment Related

$168.4 $63.4 $8.3 $2.9 Medication Related

$184.9 $77.5 $4.8 $1.3 Physical/ Sexual Abuse

$266.6 $93.7 $9.3 $3.1

From a risk management perspective, improving supervision, training, and the competency of staff to promote patient safety, can only lead to decreased frequency of claims, and a corresponding decrease in losses.

TheCostofElderCare

The economic value of informal care is substantially higher than total payments for elder care, which reached about $192 billion in 2011.21 The largest payers for elder care, accounting for about two-thirds of total spending, are Medicaid and Medicare (see figure above).22 Out-of-pocket spending is the biggest source of private spending for elder care, and is particularly large for institutional care.23 Private insurance pays for only a small share of total spending on elder care, although the number of people with private long-term care (LTC) insurance is growing slowly.24 Other sources of payment include various federal and state programs for elderly people and private charitable donations.25 Elder care expenditures now account for an estimated 1.3 percent of gross domestic product (GDP).26 Projections of future elder care expenditures are subject to considerable uncertainty.27 Difficulties in making judgments regarding future care innovations; changes in the utilization of services; and future rates of growth labor, among other factors make future cost projections tenuous at best.28

3720

36

10 11

31

40 3

2 1

$0B

$10B

$20B

$30B

$40B

$50B

$60B

$70B

$80B

Medicaid Medicare OutofPocket

PrivateInsurance

Other

Community-BasedCare

InstitutionalCare

FutureSpendingforElderCare

The Affordable Care Act of 2010 (“ACA”) attempted to address the financial challenges associated with elder care by creating the Community Living Assistance Services and Supports (CLASS) Act, a national, voluntary public insurance program aimed at long term services coverage, and financed by individual premium contributions.29 The program was designed to provide working adults the opportunity to offset costs of future long-term services and supports needs.30 However, Congress formally repealed CLASS in January 2013, when it was determined that it would not be financially self-sustaining.31 Congress also established a 15-member Commission to provide recommendations to lawmakers regarding the future of elder care. The Commission’s September 2013 Final Report32 determined that service delivery was impeded by the difficulties faced by those in need when attempting to access and navigate services which, according to the Commission was due to the fragmentation and lack of coordination of the elder care delivery system.33 The Commission’s vision to improve service delivery focused on establishing a more responsive, integrated, person-centered, and fiscally sustainable delivery system that ensures people access to quality services in their choice of setting.34 The Commission recommended that the delivery system be organized to provide: easy-to-access information, as well as provide access assistance to persons with cognitive and functional limitations; choice of settings and providers; integration with medical and health-related care; and affordable, efficient, and coordinated health care.35 In order to accomplish this, the Commission urged Congress to incentivize the states to offer more viable alternatives in the elder care setting, and enable and encourage individuals to get care while still living in their homes. The Commission also noted that Medicaid waiver complexity should be reduced by streamlining the home and community-based service provisions of the Medicaid statute36 and to establish a single point of contact for each individual utilizing services.37 The Commission also reviewed the workforce issue and recommended establishing a system which supports family caregivers, and attracts and retains a competent, adequately-sized workforce capable of providing high quality services.38 The Commission identified a correlation between high rates of injury among the elderly and an under-educated workforce, which has a high rate of turnover related to low wages, few benefits, and little opportunity for advancement.39

0.00

0.50

1.00

1.50

2.00

2.50

3.00

3.50

2010 2020 2030 2040 2050

GDP

While acknowledging that Americans are not adequately prepared for the magnitude of elder care costs the Commission could not agree on an approach to financing, prompting five of the commissioners to release an alternative report, which recommended establishing a public social insurance program; reducing barriers in Medicare for outpatient therapies and home health care; and supporting expanded Medicaid benefits for home- and community-based services.40 While the Commission recommended that future work be carried out through a national advisory committee, no such committee has been convened to date, although numerous public and private stakeholders remain interested in advancing the national elder care agenda.41 For example, in February 2016, the Bipartisan Policy Center released Initial Recommendations to Improve the Financing of Long-Term Care. Recommendations included extending existing resources; increasing the availability and affordability of private insurance; and expanding options at home and in the community for older Americans and individuals with disabilities under Medicaid. In addition, the ACA makes $4.3 billion available in grants for states to expand home- and community-based services for Medicaid enrollees.42 Included in these funds are state grants for a “Money Follows the Person” program which provides funds to encourage people living in nursing homes or other institutions to move back into their home, and seek the services and support they need in their community.43Benefits to this approach include the dignity of living in your own home in your own community, as well as potentially reduced costs to the individual, while improving their quality of life.44

Protecting the Elderly

I. Traditional Tort Claims

Historically, claims asserted against elder care facilities were premised upon traditional common law tort causes of action, including: general negligence; medical malpractice; battery; sexual abuse;, lack of informed consent; and neglect- failure to monitor the patient. In recent years, the list has expanded to include alleged negligent hiring, supervision, and retention of healthcare employees. Under traditional tort liability, claimants were permitted to recover compensatory damages, but were not entitled to punitive damages. In order to protect this vulnerable portion of the population, and in response to reports of widespread neglect and abuse in elder care facilities, the federal government and a number of states enacted legislation aimed specifically at protecting elder care residents.

II. Statutory Damage Claims

In 1987, Congress passed the “Nursing Home Reform Act,”45 aimed at promoting and enhancing the quality of life of each nursing home resident. The Act requires elder care facilities participating in the Medicare and Medicaid programs to “provide services and activities to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident in accordance with a written plan of care that … is initially prepared with participation, to the extent practicable, of the resident, the resident’s facility, or legal representative.”46 Additionally, to participate in Medicare and Medicaid, the Act required facilities to: (1) have

sufficient nursing staff;47 (2) prevent the deterioration of a resident’s ability to bathe, dress, groom, transfer and ambulate, eat and communicate;48 (3) ensure that residents do not develop pressure sores and, if they do, provide the necessary treatment and services to promote hearing, prevent infection, and prevent new sores from developing;49 (4) ensure the resident has the right to choose activities, schedules, and health care;50 and (5) maintain accurate, complete, and easily accessible clinical records on each resident.51 In order to ensure that each resident receives a standard of care that is free from abuse, isolation, and improper medical treatment, the Act also included a basic set of rights, commonly referred to as the “Nursing Home Bill of Rights,” aimed at protecting each resident’s privacy, individuality, dignity, and medical needs. Violations could result in the imposition of remedies such as monitoring, temporary management, Medicare or Medicaid payment denial, civil monetary penalties, and termination of the facility/resident agreement. In the ensuing years, many states enacted similar statutes and regulations aimed at protecting residents of elder care facilities. (See Appendix, Section I for highlights of all of the states’ elder care protection statutes.) These statutes, which in many instances provide for additional recoveries in civil actions such as punitive damages and attorney fees, add to the challenge of mitigating elder care exposure in these venues.

III. Conclusion

The projections discussed herein leave little doubt that elder care needs will significantly increase in coming decades, as will the need for more facilities and more care givers. With the increased demand for services, comes the likely increased risk of exposure. Risk management endeavors and risk mitigation strategies, as well as continued support of Tort Reform are paramount in protecting the viability of this necessary field of service.

Emerging Risks

I. Cyber AttacksA February 2015 study found that health care organizations in the United States faced an average of approximately one cyber attack per month in 2014, half of which involved the loss or exposure of patient information.52 Indeed, 2015 was dubbed the “year of the health care hack” in media headlines.53 Attacks on Anthem, Premera Blue Cross, Excellus BlueCross BlueShield and UCLA Health Systems led the way, collectively affecting more than 100 million Americans, and accounting for four out of the five largest breaches ever reported to the U.S. Department of Health and Human Services Office of Civil Rights under the Health Insurance Portability and Accountability Act (“HIPPA”) reporting framework.54 Despite media and industry attention to these breaches, and despite healthcare providers spending an estimated $1 billion on cybersecurity measures in 2016,55 many believe the industry remains ill-prepared for the risks of Cyber Attacks.

Threats By all accounts, the cyber risks facing the health care industry continue to rise, and, according to some experts, makes the health care industry one of the sectors most targeted by hackers in the United States.56 There are several reasons for this. Firstly, the information collected by health care providers on individuals

has become more valuable on the black market than the retail and credit card information which dominated cyber breaches in years past. By some estimates, the information contained in health care records is worth between 10 and 50 times more than retail or credit card information.57 Credit card numbers and bank account information can be canceled or changed after they have been compromised, but health information generally cannot.58 While the health care industry moves toward electronic medical records (EMRs) to increase the efficiency and quality of patient care, the information contained in the EMRs, including protected health information and personally identifiable information, may ultimately contain the full identity profile of an individual, potentially allowing a hacker to open new credit card accounts, access prescription drugs, and submit fraudulent medical reimbursement claims. The Affordable Care Act has resulted in over 20 million people gaining insurance coverage under the law,59 which in turn has created over 20 million new opportunities for hackers. Vulnerabilities Generally speaking, combating cyber threats has not been a top priority for health care providers.60 With health care providers rightly focused on delivering appropriate health care to their patients, and health care carriers focused on processing claims, necessary institutional resources are not always devoted to upgrading and maintaining IT security systems. This has led some experts to conclude that the industry is “woefully behind” when it comes to cybersecurity preparedness.61 The FBI even issued a private industry notification to health care providers in early 2014 indicating that their cybersecurity systems lag behind other industries.62 Health care organizations have been slower to embrace some security measures such as sophisticated backup systems. A recent report from the State of California concluded that the health care industry must improve upon even more basic cybersecurity, such as encrypting its data.63 The report found that over 50% of compromised health care sector records in California were the result of a failure to encrypt data, compared to about 16% in other sectors.64 Furthermore, a two-year study of health care facilities, medical devices, web applications, and health care data facilities performed in 2014 and 2015 concluded that the health care industry is “in turmoil” when it comes to cybersecurity readiness.65This study, released in early 2016, identified the following two major flaws: 1) a hyper-focus on the internal protection of patient records to the exclusion of addressing external threats or protection from a cyber perspective; and 2) the cyber threats that are addressed and recognized drastically underestimate the sophistication and potential specificity with which some adversaries will target patient health records.66 In other words, current industry strategies tend to be driven by regulatory compliance with a focus on preventing an indiscriminate attack to obtain the information contained in patient records, while largely ignoring potential targeted attacks.67 Another contributor to the health care industry’s vulnerability relates to the sheer number of individuals or organizations with privileges to access EMRs, with university researchers concluding that, on average, at least 30 individuals and/or organizations can validly access a typical medical record.68 Emerging Trends With all of these threats and vulnerabilities, what can we expect to see in the short term? Currently, the most-talked-about threat is ransomware. Ransomware is a form of malware—an umbrella term for malicious or intrusive software—that cybercriminals use to encrypt an electronic system so that the entity is no longer able to access it’s own data. The hackers then hold the data hostage, demanding a ransom payment in exchange for the decryption key to unlock the files, all while threating to delete the files if the ransom is not paid. The typical initial ransom amount ranges between $500 and $2,000, and is typically payable in Bitcoins.69

In January 2015, the FBI issued a warning regarding a specific type of ransomware known as CryptoWall,70 where victims became infected with the virus by clicking on links in malicious emails apparently originating from legitimate businesses or through compromised links or advertisements on websites. In the first two months of 2016, there were three reported ransomware attacks on health care organizations. Two attacks affected hospitals in Texas and California, while the victim of the third attack was the Los Angeles Department of Health. This attack in February 2016 was particularly interesting, as it appears to have been indiscriminate. The LA Department of Health’s investigation identified the remnants of ransomware on five computers, but the attack did not appear to have spread beyond those computers, and no operations were affected.71 Fortunately for the LA Department of Health, the users of the infected computers did not have unrestricted access to all of its data, likely preventing the attack from having a more devastating effect.72 By contrast, the ransomware attack that hit a California hospital in February 2016 may have been a targeted attack. In that case, the ransom was set at $17,000,73 more than would be expected from an indiscriminate attack. Higher ransom levels tend to indicate targeted attacks because automated malware does not know who it is targeting, so the ransom levels tend to be lower and therefore more likely to be paid by anyone the malware infects, including individuals. In this particular case, all of the hospital’s data was encrypted and unusable, and although the hospital’s statement indicated that the attack did not affect the delivery of patient care,74 a doctor at the hospital told the press that clinical treatments could have been affected due to inaccessible medical records. He also stated that outpatients missed treatments because of the attack.75 This broad exposure of hospital data suggests that the cybercriminals could have gained access to the account of a high ranking official of the hospital with unlimited system access to the hospital’s data. Indeed, the FBI said recently that hackers are increasingly “doing their homework” on senior personnel at deeper-pocketed organizations before launching “spearphishing,”76 targeted phishing attacks, or other campaigns.77 These attacks also tend to be more difficult to detect, as cybercriminals are able to mask the communications in such a way that the organization itself might not be able to determine which individual’s account was compromised. Some reports conclude that cybercriminals turn to ransomware as a direct result of the huge volume of data breaches over the past few years and, in particular, health care breaches in 2015.78 Internet of Things Some predict that these attacks will spread beyond the hospital itself to what is estimated to be a $117 billion market by 2020, the health care segment of the internet of things (IoT).79,80 The IoT is the increasingly large network of physical objects that can collect and exchange data by virtue of being connected to the Internet. The health care segment of IoT can be broken up into two broad categories: 1) medical devices, including pacemakers, insulin pumps, surgical and anesthesia devices, ventilators and infusion pumps; and 2) wearable technology, including health and fitness tracking wristbands, watches, and goggles. A ransomware attack on an IoT device may be used as an entry point through which cybercriminals access larger health care data networks to hold that data ransom. We could also see a situation where a cybercriminal actually takes control of the device e.g. pacemaker and threatens to turn it off or disrupt its operation if the patient does not pay a ransom. In July 2015, the Food and Drug Administration (FDA) issued a safety communication warning that a computerized infusion pump then used in hospitals was vulnerable to cyber attack.81 The FDA said that the device could be accessed remotely through a hospital’s network, which “could allow an unauthorized user to control the device and change the dosage delivered by the pump.”82

Prioritize Prevention Even if the vulnerabilities in electronic systems, IoT-connected medical devices, and wearable technologies are corrected, cyber risk will persist. No matter the technological advances, many argue that the human link in the security chain makes any system vulnerable.83 Employees who continue to respond to indiscriminate phishing or spearphishing, or continue to click on links or visit unsecure websites create the risk that malware and ransomware may be introduced into a network, Experts agree that basic security awareness is no longer sufficient, since cybercriminals are becoming increasingly sophisticated and persistent. While it has been suggested that organizations should increase their efforts by running simulations to train all employees on how to recognize and react to phishing attacks, the greatest risk may come from failing to prevent the attack in the first place. Thus, as the health care industry continues to invest in technological deterrents to cyber risk, it must not forget to provide adequate educational and training resources to the human element so it too can become a stronger link in the cybersecurity chain. Equally important, the health care provider and its risk manager must recognize the potential threat of cyber liability and protect itself accordingly.

II. Electronic Medical Records EMRs in the Healthcare Setting Recording patient information electronically originated in the late 1960’s, when Lawrence Weed introduced the concept of the Problem Oriented Medical record into medical practice.84 Then in 1972, the Regenstreif Institute developed the first medical record system.85 Although the concept was widely hailed as a major advance in medical practice, physicians were resistant to the technology for decades. Today, federal regulations have prompted health care providers to adopt a system of maintaining electronic medical records (”EMRs”), by for example creating incentive programs for Medicare and Medicaid payment participation for those who utilize EMRs. By 2014, 76% of hospitals had adopted at least a basic EMR system. Additionally, 97% of acute care hospitals possessed EMR technology certified to meet federal requirements.86 Uniformity of these systems however is not the norm. Presently, there are hundreds of EMR programs on the market.87 The push toward EMRs is aimed at improving the quality of care and efficiency for healthcare providers and their patients, by allowing practitioners over various fields to have access to a common database of information on their patient, particularly in the hospital setting. Physicians using EMRs report that they most appreciate the reports generated through the system; the ease of data entry and retrieval, particularly between different practice areas; and the positive effect on overall patient care, including communicating with patients through online portals.88 Conversely, the most prevalent user complaint with EMRs is that it leads to decreased productivity. In addition to the learning curve in implementing an EMR system, physicians feel that EMRs take away from attentiveness at the time of patient interaction because they are performing data entry while discussing signs and symptoms with the patient.89 A 2005 study published in the Journal of the American Medical Association found widely-used computerized physician order entry systems facilitated 22 different types of medication error risks, including pharmacy inventory displays being mistaken for dosage guidelines, inflexible ordering formats that generated incorrect

orders, and CPOE display screens that prevented a coherent view of the patient's medications. Additionally, 75 percent of clinical staff surveyed reported that they encountered these error risks at least weekly, if not more often.90 A common complaint with some EMR systems relates to the difficulty in flagging important information. For example, in 2014 the first U.S. Ebola patient presented to a hospital in Dallas, Texas. During intake, the patient advised the nurse that he had recently traveled to Liberia. The nurse documented this travel information into the EMR system. However, the doctor did not see this information when he reviewed the patient’s EMR, and as a result incorrectly discharged the patient, rather than placing the patient in quarantine. Three days later, the patient returned to the hospital, was diagnosed with Ebola, and placed in quarantine. The hospital and its EMR system came under scrutiny and criticism for failing to diagnose and quarantine the man three days earlier. Upon investigation, it was determined that the Hospital had different work flow systems for Nurses and Doctors which were not synchronized.91 One of the most common concerns relates to the health care providers’ overreliance on a simple EMR function such as copy and paste, which has the potential to perpetuate significant mistakes, leaving a long trail of errors less likely to be corrected.92 The copy and paste function may also present issues when it comes to determining authorship of a note. Is the note newly created, or was it copied from a prior author? EMRs in the Legal Setting Technology, electronic medical records, and electronic health records are changing the face of litigation.93What constitutes a “legal medical record?” In the paper world, a medical record is a physical folder containing papers a healthcare provider relies upon to make treatment decisions. In the electronic world, a healthcare provider sees certain screen shots in a particular order, rather than seeing the entire folder. Additionally, the layout of a chart can change with each printing, which becomes especially problematic in litigation when one version of the chart is produced to plaintiff’s counsel and then a different version of the same chart is produced at a later date. In addition, printed charts look very different than the screen view the healthcare provider sees when making diagnosis and treatment decisions. While EMRs are often organized, detailed and more legible, they tend to be very large, and the vital information is dispersed throughout, making the information difficult to locate. Additionally, EMRS often contain a long list of fields, many of which are inapplicable to the issues in the litigation, and as such must be thoroughly reviewed to determine what is relevant and discoverable, prior to being exchanged. While metadata94 may provide useful information, it is also vulnerable to security breaches. Metadata can be corrupted and hacked. Nonetheless, judges are more and more willing to require its production in litigation. The plaintiff bar chomps at the bit to get to the metadata. Inasmuch as metadata records every single interaction with the EMRs at issue, the plaintiff attorney is hoping to find some proof of record tampering, or review of the EMR by a healthcare provider who had previously denied seeing the record. Privacy Lawsuits and the Failure to Protect EMRs As the healthcare industry approaches 100% conversion to EMRs, the risk of sustaining a data breach and/or an unintentional disclosure of confidential identifiable medical information is at its apex. HIPAA seeks in part to ensure privacy and confidentiality of identifiable health information95, and imposes regulatory enforcement and damages upon healthcare for compliance failures. Although HIPAA does not provide

patients with a private cause of action to recover damages sustained as a result of the disclosure of medical information, patients have nevertheless pursued such claims by relying upon the traditional causes of action sounding in negligence, invasion of privacy, and breach of contract.96 In pursuing these causes of action, some courts have expressly acknowledged that the HIPAA regulations could be used to establish the standard of care in cases when health care providers are sued for failing to maintain and protect the privacy of EMRs.97 In addition to these traditional causes of action, many states have enacted statutes that authorize private causes of action for breach of state law protecting patient or medical records confidentiality.98 Some of these privacy statutes also authorize the recovery of punitive damages for willful or reckless disregard of the patient’s privacy rights.99 The Plaintiffs’ bar has begun incorporating violations of these statutes in their complaints, alongside other traditional common law causes of action, in order to increase damage claims. In order to protect the patient as well as the health care provider, extensive and repetitive training of medical staff is essential. Educating users not only on the process to input information, but also on metadata and its all knowing surveillance of the EMR, can help avoid unnecessary and unfortunate errors in omission and commission and consequently protect healthcare providers from unnecessary exposure.

An Update On Damage Mitigation MeasuresStates continue to enact legislation in an effort to control the escalating costs associated with healthcare malpractice claims, including requiring mandatory pre-screening of healthcare malpractice claims; pre-litigation arbitration; and damage caps. These legislative efforts have been met with mixed success. While caps in Texas have drastically reduced both the frequency and severity of healthcare malpractice claims,100while in Georgia, frequency and severity have been steadily rising since the Georgia Supreme Court struck down the state’s $350,000 cap on non-economic damages.101 In addition to recent developments outlined below, we have included in Section II of the Appendix a detailed, state by state summary of healthcare malpractice damage caps in the United States as of the publication of this report.

I. Damage Caps Missouri In 2015, the Missouri legislature addressed a 2012 ruling by the Missouri Supreme Court that declared the State’s 2005 healthcare malpractice caps to be unconstitutional.102 The new law states that healthcare malpractice actions are now statutory rather than common law causes of action.103 The Legislators believe this modification will ensure survival against anticipated constitutional challenges.104 Under the revised legislation, a $400,000 cap on all non-economic damages, including claims of pain, suffering, mental anguish, inconvenience, physical impairment, disfigurement, loss of capacity to enjoy life,

and loss of consortium105 applies in healthcare malpractice actions, with the cap increasing to $700,000 where catastrophic personal injury or wrongful death occurs.106 “Catastrophic personal injury” includes quadriplegia, paraplegia, loss of two or more limbs, brain injuries involving permanent cognitive impairment, irreversible major organ failure, or severe vision loss.107 Nevada The Nevada Supreme Court upheld the constitutionality of the state’s $350,000 statutory cap on noneconomic damages in medical malpractice/professional negligence suits,108 and also ruled that the $350,000 cap does not apply separately to each plaintiff and defendant. The cap on non-economic damages was originally approved by Nevada voters in 2004 as part of a medical malpractice reform ballot measure called the “Keep Our Doctors in Nevada” initiation amid fears that doctors would flee from the state because of high medical malpractice costs.109

Utah The Utah Supreme Court struck down the state’s healthcare malpractice non-economic damages cap of $450,000, first instituted in 1986, as unconstitutional in cases alleging wrongful death.110 The cap remains in place for non-death related claims.111 Florida In 2014, the Florida Supreme Court ruled that the legislative caps imposed on non-economic damages in wrongful death cases were unconstitutional.112 In 2015, the Fourth District Court of Appeals took it one step farther and ruled that Florida’s non-economic damages caps for non-death cases also violated the Equal Protection Clause of the Florida Constitution.113 Indiana Under the current Indiana law, physicians are responsible for the first $250,000 in damages, and the claim is capped at a total of $1.25 million to any patient for one act of malpractice. Indiana Gov. Mike Pence signed into law legislation which includes two increases to the caps: Effective July 1, 2017, the caps will increase to $400,000 and $1.65 million respectively; and the caps will again increase on July 1, 2019 to $500,000 and $1.8 million respectively.114 The law also increases the total amount of attorney fees recoverable from the Indiana Patient Compensation Fund in a healthcare malpractice action from current limit of 15%, to 32% of any recovery under the act.115

Oregon The Oregon Legislature considered a bill in 2016 to raise the non-economic damage cap in wrongful death cases from $500,000 to $1.5 million.116 The bill was ultimately defeated, with Democrats supporting the measure and Republicans opposing it.117

II. State Compensation Funds Currently, thirteen states have established Patient Compensation Funds or state-operated malpractice insurance pools in an effort to address the rising costs associated with healthcare malpractice claims. We have included in Section III of the Appendix a detailed summary of each of the thirteen state compensation funds. Some states have established compensation funds that apply to a narrow, yet significant, subset of medical

malpractice claims. By way of example, the Florida Birth-Related Neurological Injury Compensation Plan (“NICP”) provides compensation, on a no-fault basis, for a limited class of catastrophic, birth-related neurological injuries that result in unusually high costs for custodian care and rehabilitation.118 In exchange for compensation under the NICP, participants give up their rights and remedies of recovery under tort law.119 Likewise, the New York State Medical Indemnity Fund provides a monetary source for future health care costs associated with birth-related neurological injuries.120 The Virginia Birth-Related Neurological Injury Compensation Act removes from the tort system claims against physicians who practice obstetrical medicine and replaces the claim with a right to compensation under the fund.121 The Virginia Act, however, does not foreclose claims of the infant’s mother for injuries she suffered during delivery, nor does it foreclose civil actions against physicians or hospitals where there is clear and convincing evidence that the injury was caused willfully or intentionally. Other states have taken a different approach, establishing compensation funds which apply to a wider range of healthcare-related claims. These funds essentially act as excess coverage for practitioners and institutions. In addition to the Indiana statute discussed above, Louisiana, Nebraska, New Mexico, and Wyoming have enacted statutory provisions which provide excess protection to healthcare providers, with varying levels of per claim limits.122 Kansas, Pennsylvania, and South Carolina have enacted similar excess compensation funds, with one important distinction-- the liability of the participating members is not capped as it is in the other states.123 Wisconsin has also enacted a similar excess fund, (the Injured Patients and Families Compensation Fund), for purposes of paying the portion of medical malpractice claims which are in excess of statutory minimal limits.124 Although the Wisconsin fund itself is not capped, any payments by the Fund for non-economic damages are subject to the state statutory cap.125 In a variation on the excess insurance approach, West Virginia has created the West Virginia Patient Compensation Fund, which provides compensation to claimants in medical malpractice actions for any portion of economic damages awarded that is uncollectible as a result of limitations on economic damages, or as a result of the operation of joint and several liability principles and standards.126 The benefits under the West Virginia Fund are capped, and payments from the Fund may be used to pay reasonable attorney fees.127

III. Challenging Economic Damages Via the Affordable Care Act

AIG Healthcare Malpractice Claims pioneered an aggressive strategy of utilizing the Affordable Care Act (“ACA”) to defend alleged economic damages proffered by plaintiffs through extravagant life care plans.

During 2015, AIG Healthcare Malpractice Claims has been an industry leader in successfully advancing these ACA arguments across the country. Our innovative approach to defending damages has lead to many positive results throughout the U.S. As discussed below:

1. Courts in Arkansas, Arizona, California, Georgia, Hawaii, Ohio, and Tennessee have ruled that evidence related to the ACA and its impact on reducing future medical costs is admissible at trial;

2. Other courts have allowed ACA evidence to be introduced in post-trial collateral source offset hearings;

3. While still others permitted evidence of Medicare and Medicaid related offsets.

In Jones v. MetroHealth Medical Center,128the Ohio Court of Appeals became the first appellate court in the country to address the substantive merits of these arguments. The plaintiff alleged that the defendants, a Medical Center and a physician, were negligent in the delivery of her son. The jury agreed and awarded the plaintiff $14.5 million, $8 million of which was for the infant’s future economic damages. Following a post-trial collateral source hearing, the court reduced the award to $1.7 million, citing the plaintiff’s future access to Medicare, Medicaid and private insurance through the ACA. The Ohio Court of Appeals upheld the $6.3 million reduction, concluding that the child’s future medical expenses would be covered by Medicare, Medicaid, or private insurance. In its ruling , the Court rejected the plaintiff’s argument that the continuation of these programs was too speculative. The Court reasoned that accepting the plaintiff’s “argument at face value would effectively bar all offsets because of the possibility that government programs might, someday, end.” In Stayton v. Delaware Health Corporation,129 the plaintiff’s medical bills totaled approximately $3.7M, but were fully satisfied through Medicare payments of $263K, a 92% reduction.130Defendants sought to limit the past damages to the amount actually paid by Medicare. The Delaware Supreme Court agreed, holding that Medicare payments were not collateral sources and the jury should only be permitted to hear evidence of the Medicare paid rates. In doing so the Court recognized several key facts: (1) discounting medical bills is the rule rather than the exception in the industry; (2) only a small fraction of persons receiving medical care actually pay billed charges; and (3) that small group of uninsured or self-insureds is expected to decline as a result of the ACA.131The Court also refused to follow other states that permit the jury to hear evidence of both the billed and paid amounts.132The Court reasoned that the better course is to treat the paid amounts as dispositive of the issue, because the plaintiff never paid the billed rate and would not be required to pay above the amount actually paid by Medicare.133

Perhaps even more significantly, in Stayton, the Chief Justice of the Delaware Supreme Court acknowledged that it may be time to revisit the common law collateral source rule134 in light of the enactment of the ACA. In particular he stated:

“The case before us calls into question the wisdom of applying the collateral source rule - itself an exception to the general rule of damages that a plaintiff is entitled to be made whole and nothing more – in its current form, in an era where we are closer to achieving universal healthcare, and where rising healthcare costs are reducing access to care and harming our nation’s economic health.’135

In Brewington v. Unites States of America,136 the court held that evidence of future benefits available under the ACA was admissible under California’s MICRA statute. The court further held that current premiums and coverage afforded through California’s state health care exchange provided a reasonable basis upon which to make future projections. Other California courts have also permitted evidence regarding the impact of the ACA on plaintiffs’ future medical care. In Valdez v. Hazany, MD,137 the California Superior Court denied the plaintiff’s motion to exclude evidence regarding the admissibility of the ACA. Notably, the Court highlighted the fact that the ACA has withstood two challenges in the Supreme Court, and that coverage under the ACA is not too speculative. The Court ultimately held that the defendants were allowed to offer expert testimony regarding the costs of coverage for the plaintiff’s future medical care. Similarly, the Court in KuhlMann & Perkins v. Johnson & Johnson Health Care Systems138 denied the plaintiff’s motion to exclude evidence of future medical benefits from collateral sources. In Ihly v. Regents of the University of California139 and Contreras-Madrigal v.

Hollywood Presbyterian,140 defendants’ experts were permitted to testify at trial regarding the ACA and available insurance policies. In Donaldson v. Advantage Health Physicians, PC,141andChristy v. Humility of Mary Health Partners,142 both courts denied plaintiffs’ motion to preclude evidence related to the ACA, finding that health insurance under the ACA is the law of the land and reasonably likely to continue in the futureIn Sodjago v. Pediatrix Medical Group of Georgia, P.C.,143the court held that the plaintiff had opened the door to ACA evidence through the direct testimony of their life care planner. There is also a growing trend among states to allow a discussion of insurance to the extent that it affects the reasonable value of medical care. Courts taking this approach generally have acknowledged the difference between what is billed by providers and what they are ultimately paid.144They recognize that the amounts charged are largely fictitious. For example, the Montana Supreme Court held that evidence of the reasonable value of medical services can be challenged by reference to Medicare paid rates as along as the defendant did not mention that the specific plaintiff was covered by Medicare.145

Similarly, in Massachusetts, the court acknowledged that billed charges are largely fictitious, and concluded that a witness could testify as to the range of amounts accepted as payment for the particular services at issue, but could not testify as to what was actually paid by or on behalf of the plaintiff.146Likewise, the Mississippi Supreme Court ruled that discovery of collateral sources was permissible because it could be relevant to the reasonable value of medical care,147as did a federal court in Georgia.148

In Tennessee, the Court of Appeals noted that a medical care provider’s billed charges may not be considered reasonable because (1) they do not reflect what is actually being paid in the market place, and (2) medical care providers further their own economic interests when they agree to contracts discounting charges to insured patients. Thus, the court held that defendants may present evidence at trial of what providers accept as payment, without specifically referencing insurance. Significantly, the federal courts in Tennessee have gone one step further, holding that the billed rates are inherently unreasonable and inadmissible.149 While there have also been adverse decisions nationally, many of the early unfavorable decisions focused on the future viability of the ACA.150For example, Pannacciulli v. Belof,151 a New Jersey Superior Court judge denied the application of the ACA to reduce the plaintiff’s future damages claims based, in part, on the rationalization that the "longevity of the ACA is overwhelmingly called into question by the upcoming government election." Although leave for appeal of the decision was filed, the case settled prior to any appellate decision. The ACA, has now survived two challenges before the United States Supreme Court,152 There is little question that continuing efforts to expose the fiction of the plaintiffs’ life care plan is having a positive impact on mitigating economic damages. Life care planners and economists are struggling with whether and how to address the ACA, knowing that their credibility is on the line. With every success, the road gets a bit easier to navigate, but many challenges lie ahead.

IV. Apologies, Transparency and Communication

Research suggests that a key to reducing the filing of healthcare malpractice claims is communication.153 A perceived culture of secrecy in the healthcare industry, coupled with perceived doctors’ hesitation to show empathy, resulted in a “medical malpractice liability crisis” across the nation.154 The American Medical Association’s Code of Medical Ethics states that when a patient suffers medical complications which may have resulted from a physician’s error, the physician is ethically required to disclose to the patient all facts necessary to ensure the patient understands what has occurred.155 The Code further states that “concern over legal liability that might result from full disclosure should not affect the physician’s decision to deal candidly with a patient.”156 Despite these words, doctors and hospitals are often advised to refrain from making such statements to patients and families, over concern that the matter may end up in litigation.157 Currently, 36 states, the District of Columbia and Guam have enacted laws, commonly referred to as “sorry laws” or “apology laws”, to encourage expressions of sympathy, condolences, or apologies between physician and patient without the fear of the apology being misconstrued as an admission of liability at trial.158

One study attempted to quantify the effect of apology laws on the value of a claim, concluding that the passage of apology laws likely resulting in increased expressions of sympathy and compassion, has accounted for a 12.8% decrease in the size of malpractice payments.159

In addition to the so called “sorry laws,” many hospitals have eschewed the traditional “deny and defend” strategy, and instead adopted communication and/or transparency programs aimed at keeping patients apprised of any errors or unanticipated outcomes.”160 Another study found that accepting responsibility was more effective than expressing sympathy, and that “an apology gave the patient a sense of satisfaction and closure, which led to faster settlements and less demand for damages.”161 Some states place a time limit during which the law protects the apology to encourage quicker communication. For example, Washington162 and Vermont163 require a doctor to notify a patient within 30 days of a medical error, or within 30 days of when the provider knew or should have known of the error. Illinois provides stricter time constraints, with an apology being protected only if it is made within “72 hours of when the provider knew or should have known of the potential cause of such outcome.”164 Maine, Nebraska, Virginia, Vermont, Louisiana, Maryland, South Dakota, Indiana, Hawaii, California, Florida, Tennessee, Illinois, Missouri, New Hampshire, Idaho and the District of Columbia all have laws which distinguish between apologies, which are inadmissible, and statements of fault, which are admissible.165 Conversely, the Federal Rules of Evidence state that “an expression of sympathy offered by the wrongdoer outside of settlement negotiations or mediation may not be protected and may be admissible evidence”166 Thus, the healthcare provider may face federal exposure, despite protection under the state law. Case Studies

Stanford Hospital’s PEARL Program

Stanford University Medical Indemnity and Trust Insurance (“SUMIT”) launched the Process for Early Assessment and Resolution of Loss, or PEARL program in 2007.167 Under Pearl, hospital staff is trained to report problems as soon as the staff becomes aware of them, without fear of punishment. Additionally, Pearl focuses on early investigation, as well as communication and resolution with the aggrieved party. As a result of implementing PEARL, the frequency of lawsuits filed between 2009—2014 decreased by 50%, and indemnity costs decreased by 40%, when compared to the period 2003-2008.168

VA Model in Lexington, Kentucky

After the VA Medical Center sustained verdicts in two malpractice trials totaling more than $1.5 million, administrators convened a risk management team to identify, investigate, and prepare to address incidents that could result in litigation.169 The resulting program includes the following: 1) Proactive reporting of potential errors; 2) Prompt review and investigation; 3) Notifying and meeting with patient/family; 4) Full disclosure of error at in person meeting; and 5) Fair remedy, including compensation.170

After implementation of the program, the loses paid by the VA Medical Center fell well below those of other facilities that did not follow this program.171 A 15-year analysis of malpractice activity found that the average payout at the VA facility in Lexington was $14,500 less the average payout for VA facilities across the country.”172

University of Michigan Health System’s Disclosure and Offer Model

In late 2001 the University of Michigan Health System’s (“UMHS”) implemented an approach to responding to patient injuries designed to “promote patient safety through the principles of honesty, transparency and accountability.”173

The program was “informed by two central observations: (1) honesty is indispensable for safety improvement, and (2) short-term focus on financial risk impedes long-term improvement.”174 The model’s purpose was to depart from the traditional “deny and defend” approach and instead: openly communicate with patients about errors; compensate patients quickly and fairly when inappropriate care causes injury; support staff vigorously when appropriate care has been provided; and reduce future injuries and claims through application of lessons learned through the discovery process.175 The UMHS reports the rate of new claims has decreased from approximately 7 per 100,000 patients to fewer than 5 per 100,000 patients176, and the rate of lawsuits has declined from 2.13 per 100,000 patients to approximately 0.75 per 100,000 patients.177 Additionally the median time from claim to resolution declined from 1.36 to 0.95 years.178 Conclusion

Healthcare malpractice lawsuits stem in part from anger, an absence of communication, and the perception of little to no compassion from healthcare providers. Injured parties want to know what happened, how it will be prevented from happening again in the future, and how the wrongdoer will be held accountable. Key to addressing all of these concerns is communication. Training the healthcare providers to communicate both to the facility administration as well as the aggrieved party has been shown to be an effective method of containing potential exposure, while improving the relationship between patient and provider.

V. Negotiation Techniques

By Amanda Stobaugh Senior Claims Analyst, Healthcare Malpractice Claims, Dallas, TX. In our 2015 publication we discussed “The Anchor Number” as a trial-related concept.179 In this publication, we would like to expand on this approach in the context of settlement negotiations. In settlement negotiations, both parties have a reservation price, defined as “the maximum amount a [defendant] is willing to give up or the minimum amount a [plaintiff] is willing to accept.”180 The range between these two figures is the zone in which settlement can theoretically occur.181The value within the zone where a claim is ultimately resolved, as well as the zone itself, can be influenced by the anchor number. While defendants are often wary of making the first offer for fear of giving away too much information to the other side,182a fact-based, reasonable first offer should made once sufficient information has been obtained to appropriately evaluate the claim.183 The first offer more strongly influences the final agreement than any other subsequent behavior by the parties.184 This principle, referred to as the ‘anchoring effect’, is defined as “the tendency for negotiators to be overly influenced by the other side’s opening bid, however arbitrary.”185Anchoring stems from the common human tendency to rely heavily upon the first piece of information they receive (the "anchor") when making decisions.186 In the context of settlement discussions, those involved in the negotiations use this initial piece of information, the “anchor,” to make subsequent rationalizations by adjusting away from that anchor. As a result, there is an unrealized bias toward interpreting other information off of the anchor 187 Studies suggest the anchoring effect is so strong that even when people know they

should disregard it, they are unable to do so.188 While providing the plaintiff with a reasonable initial offer prior to receiving a demand will frame the negotiations in the defendant’s favor, a first offer that falls substantially below reasonable expectations is unlikely to be successful.189 To the contrary, an offer that appears unreasonably low can become an impediment to resolution, as it may cause the defendant to be viewed as unfair and untrustworthy.190 Anchoring can also be accomplished by making multiple equivalent simultaneous offers (“MESOs”).191For example, you may offer the plaintiff (1) a cash only option; (2) a cash sum along with a structured settlement proposal; or (3) an alternative structured settlement proposal with payouts at significant times for the plaintiff’s needs. Providing MESOs to the plaintiff sends the message that you are flexible, and will likely elicit information about the plaintiff’s thought process based upon the varying reactions to each offer.192 It has been shown that adding perceived value to the plaintiff through MESOs increases the likelihood of reaching a settlement.193 Despite the urge to play it close to the vest, defendants should take control of the settlement process early and steer settlement discussions through their anchor number in an effort to effectively and reasonably control potential exposure.

Conclusion The Healthcare Malpractice Landscape in the United States remains a concern, despite decades-long attempts to control exposure. While some progress has been made, challenges that seriously affect the industry as a whole remain. In an effort to control ever spiraling costs, it is imperative that the medical community continue its efforts to control the risks posed by healthcare malpractice claims.

Citations 1 Marco Spadacenta is the Senior Vice President of Healthcare Malpractice Claims at AIG. Mr. Spadacenta joined AIG in 1997. He is a graduate of St. John’s University, earning both a Bachelor of Science Degree in Management (1987), and a Doctor of Jurisprudence Degree (1990). 2 http://www.berkeleydailyplanet.com/issue/2000-04-06/article/759 3http://www.census.gov/population/projections/data/national/2008/summarytables.html 4 Id. 5 http://www.pbs.org/newshour/rundown/americas-looming-long-term-care-crisis-and-what-can-be-done/ 6 L Thompson, “Long-Term Care: Support for Family Caregivers” (Issue Brief), Georgetown University Financing Long-Term Care Project, 2004. https://hpi.georgetown.edu/ltc/papers.html 7 C Hawes, M Rose, and C Phillips. A National Study of Assisted Living for the Frail Elderly: Results of a National Survey of Facilities (Washington, DC: Office of Disability, Aging, and Long-Term Care Policy, Assistant Secretary of Planning and Evaluation, U.S. Department of Health and Human Services, 1999). https://aspe.hhs.gov/legacy-page/national-study-assisted-living-frail-elderly-final-summary-report-142821#chap1A 8 Long Term Care: Issues and Policy Considerations, Missouri Foundation for Health. http://www.mffh.org/mm/files/FactSheetLTC.pdf 9 In 1990, fewer than one in ten people were divorced. By 2009, that figure was one in four. http://www.cnn.com/2012/06/24/living/baby-boomer-divorce/ 10 20 percent of female baby boomers are childless, compared with 10 percent of women in the previous generation. http://www.sunriseseniorliving.com/blog/november-2012/baby-boomers-without-kids-face-uncertainty-in-senior-years.aspx 11 http://www.pennlive.com/midstate/index.ssf/2014/07/baby_boomers_elderly_seniors_n.html 12 http://khn.org/news/fiscal-times-nursing-home-shortage/ 13 Id. 14 Id. 15 http://onlinelibrary.wiley.com/doi/10.1111/j.1475-6773.2011.01311.x/full 16 http://www.forbes.com/sites/howardgleckman/2013/08/28/why-baby-boomers-are-facing-a-caregiver-shortage/#573d1f5c92d8 17 Id. 18 http://newoldage.blogs.nytimes.com/2014/02/26/a-shortage-of-caregivers/ 19 http://www.ncbi.nlm.nih.gov/books/NBK2629/ 20 Id. 21 https://www.cbo.gov/publication/44363 22 Id. 23 Id. 24 Id. 25 Id. 26 Id. 27 Id. 28 Id. 29 http://kff.org/medicaid/report/medicaid-and-long-term-services-and-supports-a-primer/ 30 Id. 31 Department of Health and Human Services, A Report on the Actuarial, Marketing, and Legal Analyses of the CLASS Program, October 2011. http://aspe.hhs.gov/daltcp/Reports/2011/class/index.shtml 32 https://www.gpo.gov/fdsys/pkg/GPO-LTCCOMMISSION/pdf/GPO-LTCCOMMISSION.pdf 33 Id. at p. 35 34 Id. 35 Id. at p. 36. 36 Id. at p. 37. 37 Id. at p. 39. 38 Id. at p. 49. 39 Id. at p. 50. 40 A Comprehensive Approach to Long-Term Services and Supports, September 23, 2013. http://www.medicareadvocacy.org/wp-content/uploads/2013/10/LTCCAlternativeReport.pdf 41 http://kff.org/report-section/medicaid-and-long-term-services-and-supports-a-primer-report-dec-2015/#endnote_link_172646-54 42 Department of Health and Human Services, Affordable Care Act Supports States in Strengthening Community Living, News Release, February 22, 2011. http://www.businesswire.com/news/home/20110222006764/en/Affordable-Care-Act-Supports-States-Strengthening-Community

43 Id. 44 Id. 45 42 U.S.C. 1395i-3 46 Id. 47 42 CFR § 483.30 48 42 CFR § 483.25 49 Id. 50 42 CFR § 483.40 51 42 CFR § 483.75 52 Ponemon Institute LLC Research Report, The State of Cybersecurity in Healthcare Organizations in 2016, February, 2016. 53 Andrea Peterson, 2015 is already the year of the health-care hack – and it’s only going to get worse., The Washington Post, March 20, 2015. Retrieved from https://www.washingtonpost.com/ 54 U.S. Department of Health and Human Services Office for Civil Rights Breach Portal. https://ocrportal.hhs.gov/ocr/breach/breach_report.jsf 55 Alex Ruoff, OUTLOOK 2016: Cybersecurity to Become Main IT Concern for Hospitals, Bloomberg BNA Health IT Law & Industry Report, January 15, 2016. Retrieved from http://www.bna.com/ 56 Institute for Critical Infrastructure Technology, Hacking Healthcare IT in 2016: Lessons the Healthcare Industry Can Learn from the OPM Breach, January 2016. 57 Id.; Experian Data Breach Resolution, Third Annual 2016 Data Breach Industry Forecast.; Intel Security, Healthcare-Friendly Security: How usability can coexist with protection and compliance. 58 Healthcare Friendly Security, infra, n.51. 59 U.S. Department of Health and Human Services, 20 Million People Have Gained Health Insurance Coverage Because Of The Affordable Care Act, New Estimates Show, HHS website press release, March 3, 2016. Retrieved from http://www.hhs.gov/ 60 Healthcare Friendly Security, infra, n.51. 61 Harriet Taylor, Healthcare Way Behind on Data Security, Cyber Firm Says, NBC News, November 12, 2015. Retrieved from http://www.nbcnews.com/ 62 Jim Finkle, Exclusive: FBI warns healthcare sector vulnerable to cyber attacks, Reuters, April 23, 2015. Retrieved from http://www.reuters.com/ 63 California Department of Justice, California Data Breach Report 2016, February 2016. Retrieved from https://oag.ca.gov/ 64 Id. 65 Independent Security Evaluators, Securing Hospitals: A research study and blueprint, February 23, 2016. 66 Id. 67 Id. 68 Milt Freudenheim, Breaches Lead to Push to Protect Medical Data, The New York Times, May 30, 2011. Retrieved from http://www.nytimes.com/ 69 Id. 70 The Federal Bureau of Investigation, Ransomware on the Rise: FBI and Partners Working to Combat This Cyber Threat, FBI website news stories, January 20, 2015. Retrieved from https://www.fbi.gov/ 71 Abby Sewell, Los Angeles County health department targeted in ransomware attack, Los Angeles Times, February 26, 2016. Retrieved from http://www.latimes.com/ 72 Id. 73 Hollywood Presbyterian Medical Center, Statement from President & CEO Allen Stefanek, HPMC website statement, February 17, 2016. Retrieved from http://hollywoodpresbyterian.com/ 74 Id. 75 Jason Kandel and Robert Kovacik, Hollywood Hospital ‘Victim of Cyber Attack’, NBC Los Angeles, February 11, 2016. Retrieved from http://www.nbclosangeles.com/ 76 Spearphishing is an e-mail spoofing fraud attempt that targets a specific organization seeking unauthorized access to confidential data whereas phishing is a similar attempt sent to non-specific individuals or organizations. Wired, Hacker Lexicon https://www.wired.com/2015/04/hacker-lexicon-spear-phishing/ 77 Alex Ruoff, Health-Care Industry Spending More on Security But Not Ready for Cyberattack, Bloomberg BNA Health IT Law & Industry Report, November 10, 2015. Retrieved from http://www.bna.com/ 78 Experian Data Breach Resolution, supra note 6. 79 Institute for Critical Infrastructure Technology, supra note 5. 80 Rick Holland and Heidi Shey, Predictions 2016: Cybersecurity Swings to Prevention; Landscape: The Security Architecture And Operations Playbook, Forrester Research brief, November 12, 2015. 81 U.S. Food and Drug Administration, Cybersecurity Vulnerabilities of Hospira Symbiq Infusion System: FDA Safety Communication, FDA website safety communication, July 31, 2015. Retrieved from http://www.fda.gov/ 82 Id.

83 Larry Karisny, Chuck Brooks on Cybersecurity: The Weakest Link Will Always Be the Human Element, Government Technology, March 2, 2016. Retrieved from http://www.govtech.com/; Joanna Belbey, The Weakest Link In Cybersecurity, Forbes, February 27, 2015. Retrieved from http://www.forbes.com/ 84 Interview with Lawrence Weed, MD – The Father of the Problem- Oriented Medical Records Looks Ahead, Lee Jacobs, MD, The Permanente Journal, (Spring 2009; 13[2]:85-7). 85 Regenstrief Institute, https://www.regenstrief.org/cbmi/areas-excellence/records-infrastr/. 86 A certified electronic health record is electronic health technology that meets the technological capability, functionality, and security requirements adopted by the Department of Health and Human Services. Charles, D., Gabriel, M., Searcy T. (April 2015) Adoption of Electronic Health Record Systems among U.S. Non-Federal Acute Care Hospitals: 2008-2014,. ONC Data Brief, No. 23. The Office of the National Coordinator for Health Information Technology: Washington DC. 87 Melissa McCormack, Software Advise, 2014, EHR Meaningful Use Market Share, www.softwareadvice.com/.../ehr-meaningful-use-market-share 88 Dike Drummond, Hufffington Post, Jan. 25, 2014, 9 Reasons Doctors Hate Their EMR. http://www.huffingtonpost.com/dike-drummond/electronic-medical-records 89 Id. 90 Koppel, et al., Role of Computerized Physician Order Entry Systems in Facilitating Medication Errors, JAMA 2005: 293 (10) 1197-1203. 91 Alison Diana, Information Week Healthcare, October 2, 2014, Hospital cites lack of interoperability between nurse and physician workflows as reason Ebola Patient was sent home. http://www.informationweek.com/healthcare/electronic-health/texas-hospital-blame- 92 Robert E. Hirschtick, Copy- and-Paste, JAMA 2006:295(20): 2335-2336. 93 Electronic Medical Records (“EMR”) systems are defined as “an electronic record of health-related information on an individual that can be created, gathered, managed, and consulted by authorized clinicians and staff within one health care organization. Electronic Medical records (“EMR”) systems are used by health systems and contain all information found in a paper chart and more. EMRs make health information instantly accessible to authorized providers across practices and health organizations. The National Alliance for Health Information Technology (NAHIT) 94 Metadata is data that serves to provide context or additional information about other data. For example, information about the title, subject, author, typeface, enhancements, and size of the data file of a document constitute metadata about that document. It may also describe the conditions under which the data stored in a database was acquired, its accuracy, date, time, method of compilation and processing. http://www.businessdictionary.com/definition/metadata.html 95 United States v. Elliott, 676 F. Supp. 2d 431, 439 (D. Md. 2009) (stating that HIPPA was passed to ensure an individual's right to privacy over medical records. 96 See Byrne v. Avery Ctr. for Obstetrics & Gynecology, P.C., 314 Conn. 433, 444–45, 102 A.3d 32, 41 (2014) (collecting cases). 97 Byrne v. Avery Center for Obstetrics and Gynecology, 314 Conn. 433 (2014) 98 See e.g. Cal. Civ. Code §§56.35 and 56.36 (authorizing private cause of action for nominal damages of $1,000 and/or actual damages sustained, punitive damages not to exceed $3000, attorneys’ fees up to $1000 and litigation costs); Ariz. Rev. Stat. § 12-2296 (private cause of action) 99 Conn. Gen. Stat. § 19a-550(e) 100 http://www.insurancejournal.com/news/southcentral/2013/09/03 101 AON report at 20-21. 102 Missouri Senate Bill 239. http://www.senate.mo.gov/15info/BTS_Web/BillText.aspx?SessionType=R&BillID=1173008 103 Id. 104 http://www.healthcarelawinsights.com/2015/05/missouri-tort-reform-reformed-again-medical-malpractice-damage-caps-reinstated/ 105 Id. 106 Missouri Senate Bill 239. 107 Id. 108 Tam v. Eighth Jud. Dist. Ct., 358 P.3d 234 (Nev. 2015). 109 http://www.reviewjournal.com/news/nevada/nevada-justices-uphold-medical-malpractice-damages-cap 110 Gregory Lynn Smith v. United States of America, 356 P.3d 1249 (Utah 2015). 111 http://www.marylandmalpracticeteam.com/2015/08/state-court-strikes-down-non-economic-damages-cap-for-medical-malpractice-resulting-in-death.html 112 134 So. 3d 894 (Fla. 2014) 113 2015 WL 3973075 (Fla. 4th DCA July 1, 2015) 114 Indiana Senate Bill 28. https://iga.in.gov/legislative/2016/bills/senate/28 115 Id.

116 Oregon House Bill 4136. https://olis.leg.state.or.us/liz/2016R1/Measures/Overview/HB4136 117 http://oregonbusinessreport.com/2016/02/house-votes-to-raise-cap-on-noneconomic-damages/ 118 F.S.A. § 766.301 119 F.S.A. § 766.303 120New York Public Health Law § 2999, g-j. 121 Va. Code § 38.2-5000 et seq. 122 La. R.S. 40:1231.1 et seq.; Neb. Rev. St. § 44-2829 et seq.; N.M.S.A. 1978, § 41-5-1, et seq.; Wyo. Stat. Ann. §§ 26-33-101 to 26-33-105 123 K.S.A. 40-3401 et seq.; 40 P.S. § 1303.712 et seq.; S.C. Code 1976 § 38-79-410 et seq. 124 W.S.A. § 655.27 et eq. 125 W.S.A. § 655.017 and W.S.A. § 893.55 126 W.Va. Code § 29-12D-1 et seq. 127 W.Va. Code §§ 29-12D-2 and 29-12D-3 128 No. CV 11-757131 (Ohio Ct. App. 2016) 129 117 A.3d 521 (Del. 2015) 130 Id. at 523. 131 Id. at 530. 132 Id. at 533. 133 Id. 134 Under the collateral source rule, a tortfeasor has no right to any reduction of damages because of payments or compensation received by the injured party from an independent source. Miller v. State Farm Mut. Auto. Ins. Co., 993 A.2d 1049, 1053 (Del. 2010). 135 Id. at 535. 136 2015 U.S. Dist. LEXIS 97720 (Dist. Ct., Central Div. 2015) 137 No. 56-2014-00451388-CU-MM-VTA (Cal. Sup. Ct. 2016) 138 No. RG13 675753 (Cal. Sup. Ct. Oct. 22, 2015) 139 No. B259042 (Cal. Sup. Ct. 2014) 140 No. BC466778 (Cal. Sup. Ct. 2013) 141 No. 11-09181-NH (Mich. Cir. Ct. 2015) 142 No. 2013 CV 01598 (Ohio Ct. Com. Pl. May 4, 2015) 143 No. 12EV015750 (Ga. County Ct. 2014) 144 Howell 145 Meek v. Montana Eighth Judicial Court, 379 Mont. 150 (2015) 146 Law v. Griffith, 457 Mass. 349 (Mass. 2010) 147 Williams v. Memorial Hospital at Gulfport and Nikkita Barr, No. 2015-IA-00792-SCT (Miss. Sup. Ct. July 15, 2015) 148 Houston v. Publix Supermarkets, Inc., 2015 WL 4581541 (N.D. Georgia 2015) 149 Hall v. USF Holland, Inc., No. 14-CV-2494-SHL-dkv (U.S. Dist. Ct., Western Dist. 2016); Marshall v. Lantern Square Apartments, LLC, No. 15-cv-2752-SHL-cgc (U.S. Dist. Ct., Western Dist. 2016) 150 Brewster v. Southern Home Rentals, LLC, 2012 WL 6101985 (M.D. Ala. 2012); Joerg v. State Farm, 2015 WL 5995754 (Fl. 2015); Halsne v. Avera Health, 2014 WL 1153504 (D. Minn. 2014); Deeds v. University of Pennsylvania Med. Ctr., 110 A.3d 1009 (Sup. Ct., Pa. 2015) 151 No. BER-L-845-12 (N.J. Super. Ct. Law Div., Jan. 22, 2016) 152 See King v. Burwell, 135 S.Ct. 2480 (2015); National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012) 153 http://www.managedcaremag.com/archives/1997/8/better-patient-communications-mean-lower-liability-exposure 154 See generally Ebert, Robert E., Attorneys, Tell Your Clients To Say They’re Sorry: Apologies in the Health Care Industry, 5 Ind. Health L. Rev. 337, (2008); See also The Daily Briefing, The Advisory Board Company, Don’t want to be sued? Here’s what doctors should do, June 5, 2015, accessed February 23, 2016. 155 Bender, Flauren Fagadau, “I’m sorry” laws and medical liability, American Medical Association Journal of Ethics, April 2007, Volume 9, Number 4: 300-304 (citing American Medical Association. Opinion 8.12 Patient information). 156 Id. 157 Id. 158 See Appendix, Section IV for summaries of the key provisions states that have enacted such laws. As reflected in the Appendix, the language and scope of the statutes vary state by state. 159 Ho, Benjamin and Liu, Elaine, What’s an Apology Worth? Decomposing the Effect of Apologies on Medical Malpractice Payments Using State Apology Laws, 8 J. Empirical Legal Stud. 179S, December 2011. 160 Budryk, Zack, Hospital apologies, communication programs gain steam, Fierce Healthcare, February 2, 2016, accessed February 16, 2016. 161 Robbennolt JK. Apologies and settlement. Court Review. 2009;45:90-97. http://aja.ncsc.dni.us/publications/courtrv/cr45-3/CR45-3Robbennolt.pdf 162 See Washington RCWA 5.64.010.

163 See Vermont 12 V.S.A. Section 1912. 164 See Illinois IL ST CH 735 Section 5/8 – 1901; Saitta, Nicole Marie and Hodge Jr., Samuel D., Article: Is It Unrealistic to Expect a Doctor to Apologize for an Unforeseen Medical Complication? – A Primer on Apologies Laws, 82 PA Bar Assn, Quarterly 93, July 2011. 165 Id. 166 Federal Rules of Evidence Rule 408; Saitta, Nicole Marie and Hodge Jr., Samuel D., Article: Is It Unrealistic to Expect a Doctor to Apologize for an Unforeseen Medical Complication? – A Primer on Apologies Laws, 82 PA Bar Assn, Quarterly 93, July 2011. 167 Chin, Robin, SUMC decreases annual liability premiums, November 9, 2011, http://www.stanforddaily.com/2011/11/09/sumc-decreases-annual-liability-premiums/ (accessed on February 22, 2016). 168 Landro, Laura, Hospitals Find a Way to Say, ‘I’m Sorry’, The Wall Street Journal, February 1, 2016. 169 Proactive Reporting, Investigation, Disclosure, and Remedying of Medical Errors Leads to Similar or lower Than Average Malpractice Claims Costs, Service Delivery Innovation Profile, accessed February 22, 2016 citing Kraman SS, Hamm G., et al John M. Eisenberg Patient Safety Awards. Advocacy: the Lexington Veterans Affairs Medical Center. Jt Comm J Qual Improv. 2002 Dec; 28 (12): 646-50 [Pub Med]. 170 Id. 171 A comparison of claims costs between 1990 and 1996 at the VA Medical Center in Lexington and 35 similar VA facilities found that the Lexington facility had the sixth highest number of claims, but the eighth lowest total claims payments, suggesting that average payout was the same or lower at the Lexington center. Id. 172 Id. Defense costs are not included in these payout rates, therefore, actual costs are higher. 173 The University of Michigan’s Early Disclosure and Offer Program, http://bulletin.facs.org/2013/03/michagans-early-disclosure/ accessed February 23, 2016 citing Boothman R., Imhoff SJ, Campbell DA. Nurturing a culture of patient safety and achieving lower malpractice risk through disclosure: Lessons learned and future directions. Front Health Serv Manage. 2012; 28(3): 13-27. 174 The University of Michigan’s Early Disclosure and Offer Program, http://bulletin.facs.org/2013/03/michagans-early-disclosure/ accessed February 23, 2016 175 Id. 176 The University of Michigan’s Early Disclosure and Offer Program, http://bulletin.facs.org/2013/03/michagans-early-disclosure/ accessed February 23, 2016 177 Id. 178 Id. 179 See Healthcare Malpractice Claims: The Current Landscape, June 2015, p. 13. 180 Russell Korobkin, Aspirations and Settlement, 88 Cornell Law Review 1, 5 (2002). 181 See RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 607-08 (5th ed. 1998). There is a whole body of literature that discusses how and why parties set their reservation points that is outside of the scope of this article. For further reading on this issue see, e.g., Robert D. Cooter & Daniel L. Rubinfeld, Economic Analysis of Legal Disputes and Their Resolution, 27 J. Econ. Literature 1067 (1989). 182 Pon Staff, Should You Make the First Offer? Making the First Move in Negotiations (December 21, 2009), http://www.pon.harvard.edu/daily/business-negotiations/making-the-first-move-2/. 183 AIG Negotiation Toolkit, 8 (2014). 184 Max H. Bazerman & Margaret A. Neale, Negotiating Rationally 28 (1993). 185 Pon Staff, The Enduring Power of Anchors (July 6, 2012), http://www.pon.harvard.edu/daily/negotiation-skills-daily/the-enduring-power-of-anchors/. 186 PON Archives, Definition of anchoring effect, http://www.pon.harvard.edu/tag/anchoring-effect/. 187 Negotiating Rationally at 24. 188 K. Shonk, When to Make the First Offer in Negotiation, (October 8, 2015). http://www.pon.harvard.edu/daily/negotiation-skills-daily/when-to-make-the-first-offer-in-negotation/. 189 Russell Korobkin, Aspirations and Settlement, 88 Cornell Law Review 1, 9-10 (2002). 190 Russell Korobkin & Chris Guthrie, Psychological Barriers to Litigation Settlement: An Experimental Approach, 93 Mich L. Rev. 107, 144-47 (1994); Korobkin, Aspirations and Settlement, at 41. 191 See Pon Staff, Negotiation Strategies and Negotiation Techniques – MESO Negotiation, 2012, http://www.pon.harvard.edu/daily/dealmaking-daily/why-you-should-make-more-than-one-offer/. 192 Id. 193 Id.

i

Appendix I. 50 State Summary of Elder Care Statutes

State

Statutes and Regulations

Summary Requirements

Authorizes Agency Lawsuits

or Creates 3rd Party Liability?

Alabama AL ST § 13A-6-190 through 201, “Protecting Alabama's Elders Act.” AL ST § 22-5A et seq., “Long-Term Residential Health Care Ombudsman Act” AL ST § 38-9- 1 through 11, “Adult Protective Services Act of 1976.” AL Reg. Chapter 420-5 through 10

Criminalizes physical and emotional abuse of elderly persons. Establishes criminal penalties. Creates a state ombudsman to monitor nursing homes and other long-term residential care facilities. Allows ombudsman to refer complaints to state nursing home bureau of licensure. Gives the Alabama Department of Senior Services the ability to investigate cases of elderly abuse in nursing homes and enforce criminal penalties. Rules provided by the Alabama Department of Public Health regarding nursing facilities. Alabama’s regulation of nursing homes closely mirrors the federal regulations.

No.

Alaska AK ST § 11.51. 200 et seq. AK ST § 47.24.010 et seq. AK ST § 47.62.010 et seq.

Criminalizes endangering the welfare of elderly persons. Creates reporting requirements for witnesses of elder abuse, and includes civil penalties. Establishes a long term care ombudsman to monitor nursing facilities and initiate civil action if necessary.

Yes, authorizes the state to bring civil action against nursing homes for violations of the elder abuse law.

Arizona AZ ST § 46-451 et seq. AZ ST § 46-455(B) et seq. AZ ST § 46-457 et seq.

Criminalizes endangering the welfare of elderly persons and creates a long term care ombudsman. Creates a private cause of action for any person or entity committing elder abuse. Creates an elder abuse central registry.

Yes, authorizes third parties to bring cause of action based on violations of Arizona law and authorizes attorney fees.

Arkansas AR ST § 5-28-101 et seq. AR ST § 9-20-101 et seq., “Adult Maltreatment Custody Act.” AR ST § 12-12-1701 through 1720,

Criminalizes endangering the welfare of elderly persons and provides nursing home standards. Does not authorize third-party liability. Creates rules of evidence and investigation procedures for state investigation of elder abuse.

Yes, authorizes the state to bring a civil action and impose civil penalties.

ii

State

Statutes and Regulations

Summary Requirements

Authorizes Agency Lawsuits

or Creates 3rd Party Liability?

“Adult and Long-Term Care Facility Resident Maltreatment Act.” AR ST § 20-10-601 through 20-10-603 “Long-Term Care Ombudsman Act”. AR ST § 20-10-1001 et seq.

Allows the Arkansas Attorney General to institute civil actions against caregivers suspected of abusing elderly persons. Creates standards for long term care facilities and authorizes state to bring suit. Establishes a Resident’s Bill of Rights for long-term care residents.

California Cal. Welf. & Inst. Code § 15600 through 15660, “Elder Abuse and Dependent Adult Civil Protection Act.” Cal. Welf. & Inst. Code § 15700 through 15705. Cal. Welf. & Inst. Code § 9000 et seq., “Mello-Granlund Older Californians Act” Cal. Health & Saf. Code § 1418.91

Creates immunity for those reporting elder abuse in nursing facilities but allows for private remedies against the facility itself. Criminalizes elder abuse and provides civil penalties that may be brought by state agencies and by third parties. Creates a long-term care ombudsman program. Establishes mandatory reporting requirements for elder abuse in nursing homes.

Yes, authorizes civil action and third party lawsuits against nursing homes.

Colorado CO ST § 18-6.5-101 through 108. CO ST § 25-1-120. CO ST § 26-3.1-101 through 109. CO ST § 26-11.5 et seq. “Long-term Care Ombudsman Act”

Criminalizes elder abuse, but specifically provides that it does not create a civil standard of care. Establishes the rights of patients in nursing facilities. Creates reporting requirements for elder abuse. Creates a long-term care ombudsman program, with limited civil penalties for interference with the ombudsman program.

No.

Connecticut CT ST § 17a-405 through 429. CT ST § 17b-450 through 464. CT ST § 19a-550.

Establishes a long-term care ombudsman agency with investigative and enforcement powers. Creates reporting requirements for elder abuse, with penalties for abuse and failure to report. Explicitly authorizes a cause of action for victims of elder abuse, which includes attorney fees. Creates a bill of rights for patients in a nursing home

Yes, authorizes third party actions for violations of patient bill of rights statute, as well as state agency actions.

iii

State

Statutes and Regulations

Summary Requirements

Authorizes Agency Lawsuits

or Creates 3rd Party Liability?

CT ST § 53a-321

Criminalizes elder abuse.

Delaware DE ST 6 § 2580 through 284 DE ST 16 § 1121 DE ST 16 § 1131 DE ST 16 § 1150 et seq. DE ST 31 § 3901 through 3913.

Creates civil penalties for failure to report elder abuse and for elder abuse. Provides a private cause of action for third parties, with treble damages if nursing home is found to have violated the relevant law. Establishes patient’s rights for nursing home patients, among other patients. Criminalizes elder abuse and creates reporting requirements. Creates the Office of the Long-Term Care Ombudsmen. Establishes the duties and powers of the office. Establishes services for elderly adults and limited civil penalties for elder abuse.

Yes, creates civil penalties and authorizes third party actions.

District of Columbia

DC CODE § 7-701 through 706. DC CODE § 7-1901 through 1911. DC CODE § 22-931

Establishes a long-term care ombudsman, with investigation and enforcement powers. Civil actions for damages may be brought by individuals, with punitive damages not to exceed $10,000. Creates reporting requirements for elder abuse. Criminalizes elder abuse.

Yes, provides that civil suits may be brought by the state or by third parties.

Florida FL ST § 400.20 et seq., “Nursing Home Resident’s Act.” FL ST § 415.101 “Adult Protective Services Act” FL ST § 825.101 et seq.

Allows for civil suits to be brought by third parties or state agencies for violations of Florida’s nursing home residents’ bills of rights. Creates mandatory reporting laws for elder abuse and establishes criminal penalties. Criminalizes elder abuse.

Yes, provides that civil suits may be brought by the state or by third parties.

Georgia GA ST § 30-5-2 though 10, “Disabled Adults and Elder Persons Protection Act.” GA ST § 31-8-50 through 100, “Long-term Care Facility Resident Abuse Reporting Act.”

Criminalizes elder abuse and creates mandatory reporting requirements. Provides standards and patients’ bill of rights for long term care facilities, including nursing homes. Allows for civil suits to be brought by third parties for violations of Georgia’s nursing home residents’ bills of rights.

Yes, provides that civil suits may be brought by the state or by third parties.

iv

State

Statutes and Regulations

Summary Requirements

Authorizes Agency Lawsuits

or Creates 3rd Party Liability?

Hawaii HI ST § 28-94 HI ST § 346-221 through 230.

Criminalizes elder abuse and authorizes the attorney general to bring a civil action. Provides procedure and penalties for agency investigation into nursing home elder abuse.

Yes, authorizes the state to initiate legal action.

Idaho ID ST § 39-5301 through 5308, “Adult Abuse, Neglect and Exploitation Act.” ID ST § 67-5001 et seq.

Provides criminal penalties for elder abuse. Creates a commission on aging with an ombudsman for the elderly.

No.

Illinois 320 ILCS § 20/1 et seq., “Adult Protective Services Act.” 210 ILCS 45/1 et seq., “Nursing Home Care Act.”

Creates civil and criminal penalties for elder abuse, as well as reporting requirements. The Act expressly grants nursing home residents the right to pursue actions for damages and other relief against nursing home facilities. In addition to penalties and fines levied by the state, facilities that violate the Illinois Nursing Home Care Act can also be held liable to residents for actual damages and costs and attorney’s fees for negligent and intentional violations of a resident’s rights under the act. The Act also permits class actions to be brought, remedies to be cumulative, and no restrictions are placed on any party to prevent them from seeking any additional remedies.

Yes, state nursing home act expressly provides for state and private civil action for violation of state elder care laws.

Indiana IN ST § 12-10-3 et al. IN ST § 12-10-13 et al. IN ST § 35-46-7-1 et al.

Establishes adult protective services. Creates civil penalties for elder abuse, as well as mandatory reporting requirements. Creates a long-term care ombudsman. Criminalizes elder abuse and includes rules regarding elderly persons in nursing home care.

No.

Iowa IA ST § 231.41 et al. IA ST § 235B.1 et al.

Establishes a long-term care ombudsman program with investigative powers. Any abuse is to be reported to the various agencies. Creates elder abuse protection rules.

No.

Kansas KS ST § 21-5417 KS ST § 39-1401 through 1443. KS ST § 75-7301 et seq.

Criminalizes mistreatment of an elder person. Creates reporting requirements and protections for nursing home residents and others in adult care homes. Creates a long term-care ombudsmen program with civil enforcement powers.

Yes, allows state agency to bring civil actions.

v

State

Statutes and Regulations

Summary Requirements

Authorizes Agency Lawsuits

or Creates 3rd Party Liability?

Kentucky KY ST § 209.005 et seq. “Kentucky Adult Protection Act” KY ST § 216.515 et seq.

Creates reporting requirement and criminal penalties for elder abuse. Civil enforcement appears to be limited to injunctive relief. Regulates long-term care facilities and provides for rights of residents, with any violations of those rights establishing a cause of action by the resident.

Yes, allows state and third-parties to bring civil actions, with attorney fees if successful.

Louisiana LA R.S. § 40:2010.8 et seq. “Nursing Home Residents’ Bill of Rights” LA R.S. § 14:403.2 et seq. LA R.S. § 15:1501et seq. “Adult Protective Services Act”.

Creates a nursing home resident bill of rights under which a nursing home resident may bring a claim. Criminalizes abuse and neglect of older adults. Provides additional protections elderly, including mandatory reporting.

Yes, a private cause of action is permitted for violations of an elderly persons’ nursing home bill of rights.

Maine ME ST 22 § 3470 et seq. “Adult Protective Services Act.” ME ST 22 § 5106 et seq. ME ST 22 § 5107-A

Creates criminal and limited civil fines for elder abuse. Provides powers to Maine’s Aging and Adult Services Division Creates a long term care ombudsmen program.

Yes, allows state agency to impose civil fines.

Maryland MD CRIM LAW § 3-604 et seq. MD Code, Health - General, § 19-340 et seq. MD Code, Family Law, §14-101 et seq. MD Code, Human Services, §10-901 et seq.

Criminalizes elder abuse. Creates a bill of rights for hospital patients, including those in nursing care, as well as civil penalties for any violations. Establishes an adult protective services program. The program can refer cases to state’s attorneys’ office. Creates a long-term care ombudsmen program.

Yes, allows state agency to impose civil fines and initiate actions.

Massachusetts Mass Gen. Laws 19A § 14 through 35.

Creates additional protections for the elderly, with civil penalties for violations. Also establishes a long term care ombudsman program.

Yes, allows state agency to impose civil fines.

Michigan MI ST § 400.11 et seq.

MI ST § 400.581 et seq., “Older Michiganians Act”

Creates additional protections for elderly persons, as well as mandatory reporting laws for nursing home facilities. ‘ Creates a long term care ombudsmen program.

Yes, allows state agency to bring civil action and impose fines.

vi

State

Statutes and Regulations

Summary Requirements

Authorizes Agency Lawsuits

or Creates 3rd Party Liability?

Minnesota MN ST § 256.974 et seq.

MN ST § 609.231 et seq.

MN ST § 626.557 et seq.

Creates a long term care ombudsmen program. Provides civil and criminal penalties for mistreatment of residents or patients in nursing homes. Failure to report elder abuse may be considered evidence of negligence in a civil trial but cannot be considered negligence per se.

Yes, allows state agency to bring civil action and impose fines.

Mississippi MS ST § 43-7-51 et seq. “Long-Term Care Facilities Ombudsman Act” MS ST § 43-47-1 et seq. “Mississippi Vulnerable Persons Act of 1986”

Creates a long term care ombudsmen program. The ombudsmen refer instances of elder abuse to other agencies. Provides criminal and limited civil penalties for elder abuse violations, including nursing home abuse.

No.

Missouri MO ST § 192.2300 et seq. MO ST § 192.2430 MO. ST § 198.07 et seq. MO ST § 565.180

Creates a long term care ombudsmen program. Creates elder abuse reporting requirements. Creates civil penalties for nursing home rights’ violations. Private parties may file complaint to attorney general, who can then bring action, but if attorney general fails to do so then the private citizen may file a civil action. Criminalizes elder abuse.

Yes, attorney general and private citizens may institute civil actions against nursing homes for violation of Missouri nursing home omnibus act.

Montana MT ST § 52-3-601 et seq. MT ST § 52-3-801 et seq. “Montana Elder and Persons With Developmental Disabilities Abuse Prevention Act.”

Establishes long term ombudsman services, including the right of counties to bring suit to ensure equal access to long term care. Provides criminal and limited civil penalties for elder abuse violations, including nursing home abuse.

Yes, state agencies may bring an action against a nursing home, although only in limited circumstances involving obstruction of access to the long term care.

Nebraska NE ST § 28-348 through 358, “Adult Protective Services Act.” NE ST § 81-2237 et seq.

Provides criminal and civil penalties for elder abuse violations, including nursing home abuse. Creates a long term care ombudsmen program.

Yes, allows state agency to bring civil action and impose fines.

Nevada NV ST § 200.5091 et seq. NV ST § 427A.310 et seq.

Creates civil penalties and reporting requirements for elder abuse. Creates a program for elder rights.

Yes, allows state agency to impose fines.

vii

State

Statutes and Regulations

Summary Requirements

Authorizes Agency Lawsuits

or Creates 3rd Party Liability?

New Hampshire

NV ST § 200.5091 NV ST § 161-F:10 et seq.

Creates civil penalties and reporting requirements for elder abuse. Creates a long term care ombudsmen program.

Yes, allows state agency to impose fines.

New Jersey NJ ST § 30:13-5 NJ ST § 52:27D-406 et seq. “Adult Protective Services Act.” NJ ST § 52:27G-1 et seq.,

Provides standards for nursing home care, as well as a nursing home residents’ bill of rights. Also expressly provides a cause of action for any resident whose rights are violated as established by the law. If successful, the resident is entitled to attorneys fees. Creates civil penalties and reporting requirements for elder abuse. Creates ombudsmen program for the institutionalized elderly.

Yes, the law authorizes private and state action against any violator of the law.

New Mexico NM ST § 27-7-14 et seq., “Adult Protective Services Act”. NM ST § 28-17-1 et seq. “Long-Term Care Ombudsman Act” NM ST § 30-47-1 et seq. “Resident Abuse and Neglect Act”.

Criminalizes elder abuse. Creates a long term care ombudsmen program. Provides additional protections to nursing home resident and authorizes attorney general to institute private actions.

Yes, authorizes private citizens and attorney general to bring civil actions.

New York NY Pub. Health § 2801-d et seq. NY Penal § 260.31 NY Elder 218

Allows for civil suits to be brought by third parties for violations of New York’s nursing home residents’ bills of rights. Allows plaintiffs to assert bill of rights violations along with common law negligence claims. Criminalizes elder abuse. Creates a long term care ombudsman.

Yes, law provides for third party liability of nursing homes for violations of NY nursing home bill of rights.

North Carolina NC ST § 108A-99 through 108. “Protection of the Abused, Neglected, or Exploited Disabled Adult Act.” NC ST § 143B-181.15 et seq.

Creates civil penalties and reporting requirements for elder abuse. Establishes a long –term care ombudsman program.

Yes, allows state agency to impose fines.

North Dakota ND ST § 50-10.1-01 et seq.

ND ST § 50-25.2-01 et seq.

Creates a long –term care ombudsman program. Creates standards for elder care and mandates civil penalties for elder abuse.

Yes, allows state agency to impose fines.

viii

State

Statutes and Regulations

Summary Requirements

Authorizes Agency Lawsuits

or Creates 3rd Party Liability?

Ohio OH ST. § 3721.13 et seq, OH ST. § 3721.13 et seq, OH ST § 5101.60

Establishes powers and duties of a long –term care ombudsman program. Establishes standards of care for nursing home and residents’ rights. Explicitly allows for civil action to be brought by attorney general and by private citizen for any violation of those rights. Provides additional protections for elderly persons and civil penalties for elder abuse.

Yes, nursing home rights act allows private citizens and the state to sue nursing home for any violations.

Oklahoma OK ST T. 21 § 843.1 et seq. OK ST T. 63 § 1-1940 et seq.

Creates criminal and civil penalties for elder abuse. Declares that violations of nursing home standards are a public nuisance and state may initiate civil action.

Yes, state may initiate civil action and impose civil penalties.

Oregon OR ST § 124.00 et seq., “Elderly Persons and Persons With Disabilities Abuse Prevention Act” OR ST § 441.402 et seq.,

Creates a private cause of action for any person or entity committing elder abuse, as defined by the law. Establishes a long term care ombudsman program.

Yes, private and state agency civil actions are authorized.

Pennsylvania PA ST T 35 § 10225.101 et seq., “Older Adults Protective Services Act.”

Creates additional protections for elderly and civil penalties for elder abuse.

Yes, private and state agency actions are authorized.

Rhode Island RI ST § 12-29.1-1 et seq. “Elderly Violence Prevention Act.” RI ST § 42-66-1 et seq.

Establishes additional protections for elderly persons from violence. Creates an Elderly Affairs Department and tasks it without overseeing nursing home care.

Yes, state agency may impose civil fines.

South Carolina SC ST § 43-35-5 et seq., “Omnibus Adult Protection Act”. SC ST § 43-38-10 et seq.

Gives investigative and enforcement powers to the ombudsman department created to protect elderly adults. Authorizes long term care ombudsman program to investigate and issue recommendations to other agencies.

Yes, state agency may impose civil fines and make referrals to other agencies for follow-up action.

South Dakota SD ST § 22-46-1 through 11.

Provides additional protections for elderly persons and civil penalties for elder abuse.

No.

Tennessee TN ST § 71-2-109 TN ST § 71-6-101 et seq.,

Creates an office of long-term care ombudsman.

Yes, state may initiate civil action and impose civil penalties.

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State

Statutes and Regulations

Summary Requirements

Authorizes Agency Lawsuits

or Creates 3rd Party Liability?

“Tennessee Adult Protection Act.”

Provides additional protections for elderly persons and civil penalties for elder abuse.

Texas TX HUM RES § 48.001 et seq. TX. Health & Safety Code § 260A.001 et seq.

Provides criminal and civil penalties for elder abuse violations, including nursing home abuse. Creates reporting requirements for elder abuse.

Yes, state may initiate civil action and impose civil penalties.

Utah UT ST § 62A-3-101 et seq. UT ST § 62A-3-201 et seq. UT ST § 62A-3-301et seq., “Adult Protective Services Program” UT ST § 76-5-11

Creates investigation procedures for elder abuse. Creates a long-term care ombudsman with investigation powers. Provides additional protections for elderly persons and civil penalties for elder abuse. Criminalizes elder abuse and establishes criminal penalties.

Yes, state agency may impose civil fines and initiate lawsuits on behalf of individuals.

Vermont VT ST T. 13 § 1375 et seq. VT ST T. 33 § 6901 et seq. VT ST T. 33 § 7502 et seq.

Criminalizes elder abuse. Creates mandatory reporting requirements and civil penalties for elder abuse. Establishes a long-term care ombudsman with powers to pursue judicial remedies on behalf of individuals receiving long-term care.

Yes, state agency may impose civil fines and initiate lawsuits on behalf of individuals.

Virginia VA ST § 51.5-117 et al. VA ST § 63.2-1603

Creates a department of aging and rehabilitative services to assist elderly. Creates a system for adult protective services and penalties for elder abuse.

Yes, allows state agency to impose civil fines.

Washington WA ST § 43.190 et seq. WA ST § 74.34.00 et seq. “Washington's Vulnerable Adult Statute”

Establishes a long term care “ombuds” program Creates a private cause of action for any person or entity committing elder abuse as defined by the act. Allows family members of the elderly adult to bring an action for damages as well (Wash. Rev. Code. § 74.34.210).

Yes, allows state and private citizens to bring action.

West Virginia WV ST § 9-6-1 et seq. WV ST § 16-5L-1 et seq., “West Virginia Long-Term Care Ombudsman Program Act”

Provides adult protective services for elderly adults, and creates specific standards for nursing homes. Establishes a long term care ombudsman program.

Yes, arguably authorizes both state and private actions.

x

State

Statutes and Regulations

Summary Requirements

Authorizes Agency Lawsuits

or Creates 3rd Party Liability?

Wisconsin WI ST § 16.009 WI ST § 46.90 et seq. WI ST § 46.2895 et seq. WI ST § 50.10 et seq.

Creates a long term care board to investigate nursing home facilities. Establishes procedures for elderly abuse investigations and mandatory reporting. Allows counties to create long term care districts that can establish penalties for violations of long-term care standards. Regulates nursing home facilities and specifically provides a cause of action for private citizens to bring suits on behalf of resident.

Yes, the law creates nursing home standards and provides a cause of action for state agency and private parties.

Wyoming WY ST § 9-2-1301 et seq. ““Long Term Care Ombudsman Act” WY ST § 35-20-101 et. al “Adult Protective Services Act.”

Creates long term care ombudsman program to investigate nursing home abuse. Criminalizes elder abuse, creates mandatory reporting and establishes service providers for elderly adults.

No.

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II. 50 State Summary of Damage Caps State Damage Caps - Medical Malpractice Damage Caps - Long Term Care

Alabama None. Limits on noneconomic damages (§6-5-547) declared unconstitutional by state Supreme Court (see Mobile Infirmary Medical Center v. Hodgen, 884 So.2d (Ala. 2003).

None

Alaska Yes: $250,000 cap on non-economic damages for claim arising out of single injury, regardless of number of health care providers. Limit of $400,000 when damages are awarded for wrongful death or severe permanent physical impairment that is more than 70 percent disabling. (AS §09.55.549). However, limit does not apply if reckless or intentional misconduct (hence punitive damages.) GENERAL damages caps (AS §09.17.010) that apply to all personal injury or wrongful death actions limit non-economic damages to $400,000 or the injured person’s life expectancy times $8,000, whichever is greater. However, limits increases to $1,000,000 or the person’s life expectancy times $25,000, whichever is greater, when there is severe permanent physical impairment or severe disfigurement.

Unclear - there are no decisions in which a nursing home claim was brought under the Medical Act. However, in South Central Health Planning & Development Inc. v. Commissioner of Dept. of Admin, 628 P.2d 551 (Alaska 1981), the Supreme Court held that a skilled nursing facility was a “health care facility” as defined by statute, and hence required a Certificate of Need prior to construction. This, combined with the broad language of the Medical Malpractice definitions section (AS § 09.55.560) implies that nursing homes should come within the medical malpractice limits. Damage cap with be either medical malpractice noneconomic limit of $250,000 or general limit of $400,000 / $8,000 x life expectancy or $1,000,000 / $25,000 x life expectancy if severe permanent physical impairment or severe disfigurement. AS §09.55.549; AS §09.17.010

Arizona None None.

Arkansas None None.

California Yes: $250,000 limited for noneconomic damages, regardless of the number of claims. Cal.Civ. Code §3333.2 Cap was enacted as part of the Medical Injury Compensation Reform Act (MICRA), and does not apply to residential nursing care facilities.

Long term care facilities are governed by the Long-Term Care, Health, Safety and Security Act of 1973. West’s Ann.Cal.Health & Safety Code §1417 et. seq. There are no damage caps. Civil action may be brought against Licensee, for up to $500 for each violation, with costs and attorneys fees. West’s Ann.Cal.Health& Safety Code §1430. Actions are also brought for violation of Elder Abuse statute.

Colorado Yes: Healthcare Availability Act limits non economic damages to $300,000 and economic damages to $1,000,000 (though cap can be exceeded for "good cause shown") CRSA §13-64-302.

“General” noneconomic damages are capped at $250,000, unless the Court finds justification, by clear and convincing evidence, but in no event may non-economic damages exceed $500,000. CRSA §13-21-102.5

Connecticut None None

Delaware None. (Note health care medical negligence litigation is regulated under 18 Del.C.§6801, et. seq.)

None. (Note nursing facilities are regulated in 16 Del.C. § 1101, et. seq.)-

District of Columbia

None. None.

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State Damage Caps - Medical Malpractice Damage Caps - Long Term Care Florida Status questionable: Noneconomic damages

were limited in FSA §766.11 to $500,000 per claimant and/or practitioner, $750,000 in the event the defendant is a facility rather than an individual practitioner. In the case of death or permanent vegetative state, the noneconomic damages were doubled to $1,000,000 or $1,500,000. However, in Estate of McCall v. United States, 134 So.3d 894 (Fla. 2014), the Florida Supreme Court held that the statutory cap on wrongful death non-economic damages in cases involving several claimants was unconstitutional, as it violated the equal protection clause of the state constitution. In North Broward v. Kalitan, 2015 WL 3973075 (4th DCA 7/1/2015), the Fourth District Court expanded upon this ruling, and held that noneconomic damage caps in personal injury actions were unconstitutional, and violated the Equal Protection Clause.

None.

Georgia None. Prior caps which were set forth in Ga.Code.Ann.§ 51-13-1 were found unconstitutional in Atlanta Oculoplastic Surgery, PC v. Nestlehutt, 691 S.E.2d 218 (Ga. 2010)

None. Prior caps which were set forth in Ga.Code.Ann.§ 51-13-1 were found unconstitutional in Atlanta Oculoplastic Surgery, PC v. Nestlehutt, 691 S.E.2d 218 (Ga. 2010)

Hawaii Yes. The recovery for "pain and suffering" (defined as the actual physical pain and suffering that is the proximate result of a physical injury sustained by a person) in ALL TORT ACTIONS is capped at a maximum of $375,000. (HI Revised Statutes, Section 663-8.5) However, this does not apply to: Intentional torts, torts relating to environmental pollution, toxic and asbestos-related torts, torts relating to aircraft accidents, strict and product liability torts or torts relating motor vehicle accidents, with specified exceptions. HRS § 663-10.9

Yes. The recovery for "pain and suffering" (defined as the actual physical pain and suffering that is the proximate result of a physical injury sustained by a person) in ALL TORT ACTIONS is capped at a maximum of $375,000. (HI Revised Statutes, Section 663-8.5) However, this does not apply to: Intentional torts, torts relating to environmental pollution, toxic and asbestos-related torts, torts relating to aircraft accidents, strict and product liability torts or torts relating motor vehicle accidents, with specified exceptions. HRS § 663-10.9

Idaho Yes: Non-economic damages in all actions for personal injuries are capped at $250,000 (this figure is adjusted each year for inflation beginning 7/1/2004). I.C. §6-1603. The cap does not apply if the cause of action arises out of willful or reckless conduct or acts which would constitute a felony. I.C. § 6-1603.

Yes: Non-economic damages in all actions for personal injuries are capped at $250,000 (this figure is adjusted each year for inflation beginning 7/1/2004). I.C. §6-1603. The cap does not apply if the cause of action arises out of willful or reckless conduct or acts which would constitute a felony. I.C. § 6-1603.

Illinois No; IL Supreme Court found caps on damages violates the constitutional principle of separation of powers by interfering with the authority of the judicial branch to reduce verdicts. LeBron v. Gottlieb Memorial Hospital, (Ill. February 4, 2010).

None

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State Damage Caps - Medical Malpractice Damage Caps - Long Term Care Indiana Yes: $250,000.00 per qualified health care

provider per act of malpractice causing injury.T otal amount recoverable for injury/death of patient may not exceed $1,250,000. Amount due from judgment in excess of total liability of qualified health care providers is paid from patient’s compensation fund. IC 34-18-14-3

None

Iowa None None.

Kansas Yes: Wrongful Death Cap: $250,000 plus the pecuniary loss sustained by the heir at law. KSA 60-1903. Personal injury action cap: $300,000 Non Economic Damage Cap (until 7/1/18- increases to $325,000, then 7/1/22 – increases to $350,000) – limit applies to each party’s recovery for noneconomic damages from all defendants. KSA 60-19a02. There is No vicarious liability for any qualified healthcare provider who has coverage with the KS Healthcare Stabilization Fund

Yes: Wrongful Death Cap: $250,000 plus the pecuniary loss sustained by the heir at law. KSA 60-1903. Personal injury action cap: $300,000 Non Economic Damage Cap (until 7/1/18- increases to $325,000, then 7/1/22 – increases to $350,000) – limit applies to each party’s recovery for noneconomic damages from all defendants. KSA 60-19a02.

Kentucky No No.

Louisiana Yes: Healthcare Provider cap is $100,000 and Louisiana Patient Compensation Fund Cap is $400,000 for total damage cap of $500,000 in medical malpractice cases for "qualified providers" (those that have paid a surcharge to the PCF). Held constitutional in Oliver v. Magnolia Clinic, 85 So.3d 39 (La. 2012).

Issue revolves around whether alleged negligence requires expect testimony relating to standard of care: if expert testimony is required, action falls within ambit of Medical Malpractice Act (MMA), and all requirements (expert review, panel, etc) apply. If not, the claim falls under the Nursing Home Residents Bill of Rights (NHRBR) (LSA-R.S. 40:2010.1 et. seq.) which has no damage caps.

Maine Yes: In wrongful death cases: $500,000 cap on loss of consortium, limit on punitive damages of $250,000. 18-A MRSA §2-804

Yes: In wrongful death cases: $500,000 cap on loss of consortium, limit on punitive damages of $250,000. 18-A MRSA §2-804

Maryland Yes: Medical Malpractice Noneconomic Damages Cap 3-2A-09, Cts. & Jud. Proc. Art., Md. Ann. Code. may not exceed $650,000 for cause of action arising between 1/1/05 and 12/31/08. Limitation increases by $15,000 each year beginning with 1/1/09. Applies to personal injury and wrongful death from the same medical injury. In wrongful death with two or more beneficiaries, total amount of noneconomic damages awarded may not exceed 125% of the limit. Other personal injury or wrongful death noneconomic damages are regulated under MD §11-108

Actions against a nursing home constitute medical malpractice actions (see, ie. Dickerson v. Longoria, 995 A.2d 721 (Md.App. 2010); hence, the same caps apply.

Massachusetts Yes: $500,000 limit for noneconomic damages, unless there is substantial or permanent loss or impairment of bodily function or substantial disfigurement, or other special circumstances that warrant additional compensation. MGLA 231 § 60H Statute does not apply in wrongful death scenarios.

Yes. A nursing home is defined as a provider of health care under MGLA 231 § 60B; hence, there is a $500,000 limit for noneconomic damages, unless there is substantial or permanent loss or impairment of bodily function or substantial disfigurement, or other special circumstances that warrant additional compensation. MGLA 231 § 60H Statute does not apply in wrongful death scenarios.

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State Damage Caps - Medical Malpractice Damage Caps - Long Term Care Michigan Yes: Michigan has imposed a two tier cap on

noneconomic damages on the total amount recoverable from all plaintiffs. MCLA 600.1483. The upper tier cap is available only where there is permanent loss of reproductive capacity; hemiplegia, paraplegia or quadriplegia; or brain injury causing permanent impairment to the cognitive capacity. Death is not an exception to the lower tier cap; if the plaintiff suffered a qualifying injury prior to death, the upper tier cap is available. The statutory caps are adjusted annually according to the consumer price index. In 2015, the lower tier cap is $444,900, and the upper tier cap is $794,500 for causes of action arising after September 30, 1993. For causes of action arising before October 1, 1993, the lower tier cap is $225,000 and the upper tier cap is $467,300. The trial court determines which cap applies after the jury renders its verdict. Any settlement received from other tortfeasors is subtracted from the verdict before it is reduced to the cap.

If the Nursing home and patient enter into professional relationship to render professional services which is breached, it supports a claim for medical malpractice. Bryant v. Oakpoint Villa Nursing Center, 684 N.W.2d 864 (2004) (patient death caused by positional asphyxia, due to negligent nursing care). In this case, malpractice caps apply. If the action is for ordinary negligence, no caps apply.

Minnesota Minnesota does not cap damages in medical malpractice cases. While there is generally no cap on damages in Minnesota, compensatory damage awards are limited if the claim is against a municipality. Under M.S A § 466.04, the tort liability of a municipality is not to exceed $1,000,000 for all claimants arising out of one incident.

None.

Mississippi Yes. Medical malpractice claims have a non-economic damage cap of $500,000. Miss. Code Ann. § 11-1-60. There are no limits to economic damages (past, present or future medicals, lost wages, etc). Note that Miss. Code Ann. § 11-1-60 was held unconstitutional by a Mississippi intermediate court in Tanner v. Eagle Oil & Gas Co., 2012 WL 7748580 (Miss.Cir. 1st Dist. 2012)

None.

Missouri Yes: Missouri’s most recent tort reform package was enacted in 2005. Included in these tort reform measures was a cap on non-economic damages in medical negligence cases. The cap is $350,000 for non-economic damages per case, irrespective of the number of defendants, plaintiffs, or occurrences of negligence. There is no adjustment of the cap based on inflation or other economic factors. However, new Missouri noneconomic damage caps are to be effective on August 28, 2015 due to a bill signed by Missouri Governor Jay Nixon. Noneconomic damages, such as pain and suffering, would be capped at $400,000 in most medical personal injury cases. Measurable economic damages, such as medical costs resulting from the injury and lost wages, would not be subject to the limits. HEALTH CARE PROVIDERS—STATUTORY CAUSE OF ACTION, 2015 Mo. Legis. Serv. S.B. 239 (VERNON'S) (West's No. 71). For

Yes. See medical malpractice damage caps.

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State Damage Caps - Medical Malpractice Damage Caps - Long Term Care "catastrophic" cases defined in the bill, including paralysis, loss of vision and brain injury, the cap would be $700,000. The bill also doubles the existing cap in wrongful death cases from $350,000 to $700,000. Id.

Montana Yes. In a malpractice claim or claims against one or more health care providers based on a single incident of malpractice, an award for past and future damages for noneconomic loss may not exceed $250,000. (MCA 25-9-411).

None

Nebraska Yes. Pursuant to the Nebraska Hospital Liability Act, the damage cap is $2,250,000 for those providers qualified under the Act. There is no damage cap for those that are not qualified. (Note – amount of cap depends upon date of occurrence). Neb.Rev.St. § 44-2825. Each health care provider is responsible for up to $500,000 of that judgment; the remainder is paid by the “excess liability fund” created under the Nebraska Hospital-Medical Liability Act, and funded by fees paid by participating providers. Neb.Rev.St. § 44-2829 et. seq.

Nebraska Nursing homes are regulated under Neb.Rev.St. § 71-6008 et. seq. There are no damage caps.

Nevada Yes: $350,000 limit on noneconomic damages regardless of number of plaintiffs, defendants or theories of liability. NRS 41A.035 Nevada also has a $50,000 limit on civil damages for care or assistance for traumatic injury demanding immediate medical attention, INCLUDING care rendered at an ER or trauma center, unless grossly negligent. However, limitation ceases upon patient stabilization. NRS 41.503. Additional rule on non-liability relating to provision of emergency obstetrical care. NRS 41.506

New Hampshire

None in medical malpractice actions - Limits declared unconstitutional by State Supreme Court.

None. Note - nursing homes are regulated under Chapter 151 of the New Hampshire Revised Statutes.

New Jersey No non-economic damages caps. No non-economic damages caps.

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State Damage Caps - Medical Malpractice Damage Caps - Long Term Care New Mexico Yes: In medical malpractice actions against a

qualified health care provider tried before a jury, a $600,000 limit ($500,000 for incidents prior to April 1, 1995) applies to all damages, with the exception of punitive damages and damages for medical expenses. N.M. Stat. Ann. § 41-5-6 (Michie 1996). (See Patient Compensation Funds and Physician Insurance for a further limitation on the liability of qualified health care providers.) The $600,000 limit on damages does not include future medical expenses, which are not covered by monetary damages. If the jury finds that a plaintiff requires future medical care, the expense of that care must be paid as incurred. N.M. Stat. Ann. § 41-5-7 (Michie 1989 & Supp. 1997). Health care providers are not liable individually for any amount over $200,000; any judgment in excess paid from Patient's Compensation Fund.

None.

New York None. There are no damage caps in New York. Any party may challenge at the trial court level and on appeal, a damages award or lack thereof that “deviates materially from what would be reasonable compensation.” No significant efforts to push for med mal reform on the state level in New York.

None.

North Carolina Yes but seriously limited: $500,000 cap on non-economic damages against all defendants; cap increases yearly by Consumer Price Index factor; however, NO LIMIT if plaintiff suffered “disfigurement, loss of use of part of the body, permanent injury or death” or if defendant conduct was grossly negligent or intentional. NCGSA §90-21.19. Malpractice verdicts must specify amount of non-economic damages. NCGSA §90-21.19B

Nursing homes are considered “health care providers” within the scope of the provisions governing medical malpractice actions. NCGSA §90-21.11 Hence, see medical malpractice caps.

xvii

State Damage Caps - Medical Malpractice Damage Caps - Long Term Care North Dakota Yes - With respect to a health care malpractice

action or claim, the total amount of compensation that may be awarded to a claimant or members of the claimant's family for noneconomic damage resulting from an injury alleged under the action or claim may not exceed $500,000, regardless of the number of health care providers and other defendants against whom the action or claim is brought or the number of actions or claims brought with respect to the injury. With respect to actions heard by a jury, the jury may not be informed of the limitation contained in this section. If necessary, the court shall reduce the damages awarded by a jury to comply with the limitation in this section. NDCC 32-42-02 NOTE: the North Dakota Medical Malpractice Ins.Co. is created under NDCC 26.1-14-01 et.seq.. Any healthcare provider insured by the company with $500,000/$1,000,000 limits is immune from liability in excess of those limits. NDCC 26.1-14-11.

Yes - With respect to a health care malpractice action or claim, the total amount of compensation that may be awarded to a claimant or members of the claimant's family for noneconomic damage resulting from an injury alleged under the action or claim may not exceed $500,000, regardless of the number of health care providers and other defendants against whom the action or claim is brought or the number of actions or claims brought with respect to the injury. With respect to actions heard by a jury, the jury may not be informed of the limitation contained in this section. If necessary, the court shall reduce the damages awarded by a jury to comply with the limitation in this section. NDCC 32-42-02

Ohio Yes: There is a cap on non-economic damages for claims arising out of acts or omissions on or after April 11, 2003. The basic cap is the larger of $250,000 or three times economic damages, subject to a maximum of $350,000 per plaintiff and a maximum of $500,000 per occurrence. These maximum amounts increase to $500,000 per plaintiff and $1 million per occurrence if the plaintiff has suffered permanent and substantial physical deformity, loss of use of a limb, loss of a bodily organ system, or permanent physical injury that prevents self-care. The cap does not apply to cases brought under the wrongful death statute, but it does limit recovery by a decedent's estate for such non-economic damages as conscious pain and suffering experienced prior to death.

No. However, upon post-trial motion, the Court can review an award of non-economic damages alleged to be excessive. ORC 2315.19.

Oklahoma Yes. For actions filed after 11/1/2011, Noneconomic damages are limited to $350,000 regardless of the number of defendants, unless the defendant was reckless; grossly negligent; acted fraudulently or acted intentionally with malice, in which case there is no limitation. 23 Ok.St.Ann § 61.2

Yes. For actions filed after 11/1/2011, Noneconomic damages are limited to $350,000 regardless of the number of defendants, unless the defendant was reckless; grossly negligent; acted fraudulently or acted intentionally with malice, in which case there is no limitation. 23 Ok.St.Ann § 61.2

xviii

State Damage Caps - Medical Malpractice Damage Caps - Long Term Care Oregon No: ORS §31.710 provides a $500,000 cap on

non-economic damages in all cases. However, in Lakin v. Senco Products Inc., 329 Or. 62, 67, 987 P.2d 463 (1999), the Oregon Supreme Court held that ORS 18.560(1) [subsequently to become ORS 31.710], the statutory cap on noneconomic damages, when applied to a common law negligence action, violates Article I, section 17, of the Oregon Constitution. The statute was declared constitutional in Hughes v. PeaceHealth, 344 Or 142, 178 P3d 225 (2008) for wrongful death cases, because there was no common law right of action for wrongful death at the time the Oregon State Constitution was promulgated.

No: ORS §31.710 provides a $500,000 cap on non-economic damages in all cases. However, in Lakin v. Senco Products Inc., 329 Or. 62, 67, 987 P.2d 463 (1999), the Oregon Supreme Court held that ORS 18.560(1) [subsequently to become ORS 31.710], the statutory cap on noneconomic damages, when applied to a common law negligence action, violates Article I, section 17, of the Oregon Constitution. The statute was declared constitutional in Hughes v. PeaceHealth, 344 Or 142, 178 P3d 225 (2008) for wrongful death cases, because there was no common law right of action for wrongful death at the time the Oregon State Constitution was promulgated.

Pennsylvania None; there are no limits on damages and no bills for Tort Reform currently pending.

None.

Rhode Island None. Note actions against a deceased defendant are limited to actual damages only; no punitive or noneconomic damages are allowed. RI ST §9-1-8

None.

South Carolina Yes: $350,000 stacked cap on non-economic damages for each healthcare provider. Total award for non-economic damages can not exceed $1,050,000. See SC Code 15-32-220.

Yes: SC Code 15-32-210 defines a health care institution to include a nursing home. Limit of $350,000 stacked cap on non-economic damages for each healthcare provider. Total award for non-economic damages cannot exceed $1,050,000. See SC Code 15-32-220.

South Dakota Yes: $500,000 limit on noneconomic damages per SDCL §21-3-11. However, there is no limit on special damages that may be awarded.

None.

Tennessee Yes. Effective 6/12/12, in all civil actions, non economic damages are capped at $750,000, Economic damages are capped at $500,000, and Catastrophic losses or injuries are capped at $1,000,000. Catastrophic injuries are defined as paralysis, amputation of one of each hands or feet or both, 3rd degree burns over 40% of the body, or wrongful death of a parent leaving a minor dependent child. TCA §29-39-102

Yes. Effective 6/12/12, in all civil actions, non economic damages are capped at $750,000, Economic damages are capped at $500,000, and Catastrophic losses or injuries are capped at $1,000,000. Catastrophic injuries are defined as paralysis, amputation of one of each hands or feet or both, 3rd degree burns over 40% of the body, or wrongful death of a parent leaving a minor dependent child. TCA §29-39-102

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State Damage Caps - Medical Malpractice Damage Caps - Long Term Care Texas Yes, in medical negligence claims; Chapter 74 of

the Texas Civil Practice & Remedies Code limits damages through its statutory damages caps. Under §74.301 of the Texas Civil Practice & Remedies Code: in an action against one or more healthcare providers other than a healthcare institution, a claimant’s noneconomic damages are capped at $250,000; in an action against a single healthcare institution, noneconomic damages are capped at $250,000; in an action against more than one healthcare institutions, noneconomic damages are capped at $500,000; in an action against one or more healthcare providers other than a healthcare institution and one healthcare institution, a claimant’s noneconomic damages are capped at $500,000; and in an action against multiple healthcare providers, including more than one healthcare institution and one or more healthcare providers other than a healthcare institution, noneconomic damages are capped at $750,000. Claims for medical expenses and funeral and burial expenses are not capped. Additionally, in a wrongful death or survival claim, the limit on all damages, including exemplary damages, is limited to $500,000, adjusted for the change in the consumer price index since August 23, 1977. See Texas Civil Practice and Remedies Code §74.303. However, §74.303’s cap does not apply to the amount of damages awarded for necessary medical expenses. Therefore, applying both caps indicates noneconomic damages would be capped at $250,000, but the total of all damages (including exemplary), other than damages awarded for medical expenses, is approximately $1.8 million.

Per The Texas Civil Practices & Remedies Code §74.001, a nursing home is considered to be a “health care institution” under the Medical Liability Act. The caps applicable to medical malpractice damages are hence applicable to nursing homes.

Utah UCA §78B-3-410 - Damage caps in medical malpractice actions in the amount of $450,000, exclusive of punitive damages. Held unconstitutional by Utah Supreme Court in a wrongful death action per Smith v. U.S., 2015 WL 4742499 8/11/2015).

Per UCA §78B-3-403, a nursing care facility is defined as a health care facility for purposes of the Utah Health Care Malpractice Act. The same caps apply – but as noted, caps were held unconstitutional.

Vermont No specific caps applicable. However, per 12 VSA §5601, maximum liability of State is $500,000 to any one person, and $2,000,000 to all persons arising out of each occurrence. However, this limit does not apply if liability insurance has been purchased by the State.

None

Virginia Yes: per VA Code Ann.§ 8.01-581.15, limit for verdicts rendered from 7/1/15 to 6/30/16 is $2.20 million (increases yearly).

Yes. Per VA Code Ann. § 8.01-581.1, “health care” is specifically defined to include professional services in nursing homes. The medical malpractice caps are applicable in long term care scenarios.

Washington No damage caps; Sofie v Fibreboard Corp., 112 Wn. 2d 636, 771 P.2d 260 (1989) declared Washington’s damage caps unconstitutional.

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State Damage Caps - Medical Malpractice Damage Caps - Long Term Care West Virginia Yes: The MPLA limits non-economic loss to

$250,000 per occurrence, regardless of the number of plaintiffs and defendants. W.Va. Code § 55-7B-8 (2003) Non-economic losses “include but are not limited to pain, suffering, mental anguish and grief.” Plaintiff may recover compensatory damages for non-economic loss in excess of the limitation above, but not in excess of $500,000 for each occurrence, where the damages for non-economic losses suffered by the plaintiff were for: (1) wrongful death; (2) permanent and substantial physical deformity, loss of use of a limb or loss of a bodily organ system; or (3) permanent physical or mental functional injury but permanently prevents the injured person from being able independently care for himself or herself and perform life sustaining activities. W.Va. Code § 55-7B-8(b). West Virginia also has separate statutory cap on the amount of damages recoverable in a medical malpractice suit. See W.Va. Code 55-7B-7a and 55-7B-9d for details.

Yes. W.Va. Code § 55-7B-2, the definitions section of the MPLA, specifically includes nursing homes. Hence, the same damages caps apply in LTC as in MedMal.

Wisconsin Yes: $750,000 noneconomic damage cap for each occurrence on or after 4/6/06; except for cases involving wrongful death. W.S.A. §893.55. Judgment for damages for pecuniary injury from wrongful death may be awarded to any person entitled to bring a wrongful death action. Additional damages not to exceed $500,000 per occurrence in the case of a deceased minor, or $350,000 per occurrence in the case of a deceased adult, for loss of society and companionship may be awarded to the spouse, children or parents of the deceased, or to the siblings of the deceased, if the siblings were minors at the time of the death. Wis. Stat. 895.04 (4). WI Patients Compensation Fund serves as excess insurer when a judgment exceeds the minimum mandatory liability insurance required to be carried by physicians ($1M/$3M) Wis. Stat. § 655.23(4).

The total noneconomic damages recoverable for bodily injury arising from care or treatment performed, or from any omission, by a long-term care provider, including any action or proceeding based on contribution or indemnification and any action for a claim by a person other than the injured person for noneconomic damages recoverable for bodily injury, may not exceed the limit under s. 893.55 (4) (d) ($750,000) for each occurrence on or after February 1, 2011, from all long-term care providers and all employees of long-term care providers acting within the scope of their employment and providing long-term care services who are found negligent. (Wis. Stat 893.555(4))

Wyoming No. However, liability of governmental entities, public hospitals, and their employees limited to the amount of insurance coverage which is capped on Wyoming Governmental Claims Act. Can have specific insurance policy in place and a typical policy would be $1mil/$5mil. Per WS 1977 §1-39-110, liability shall not exceed $1,000,000 per occurrence, regardless of number of claimants.

None.

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III. State Compensation Funds Florida The Florida Legislature established the Florida Birth-Related Neurological Injury Compensation Plan (“NICP”) in 1998 to provide compensation, on a no-fault basis, for a limited class of catastrophic, birth-related neurological injuries that result in unusually high costs for custodial care and rehabilitation.1 The NICP is administered by the Florida Birth-Related Neurological Injury Compensation Association (“NICA”).2 The NICP is available to eligible families statewide without litigation. By eliminating costly legal proceedings, and through professional management of its disbursements, NICA ensures that birth-injured infants receive the care they need while reducing the financial burden on medical providers and families. Individuals interested in pursuing a claim under the NICP must submit a claim by the child’s fifth birthday.3 The claim is then reviewed by an administrative law judge to determine whether the injury claimed is a birth-related neurological injury.4 By becoming a participating physician, a physician shall be bound for all purposes by the finding of the administrative law judge or any appeal therefrom with respect to whether such injury is a birth-related neurological injury.5 If it is determined that a child has sustained a birth-related neurological injury and the obstetrical services were delivered by a participating physician at birth, the administrative law judge can make an award compensating the relative for actual medical and hospital expenses, expenses associated with rehabilitation/therapy/training, family or professional residential or custodial care, medication, special equipment and facilities and related travel expenses.6 The rights and remedies granted by NICP exclude all other rights and remedies of such infant, her or his personal representative, parents, dependents, and next of kin, at common law or otherwise, against any person or entity directly involved with the labor, delivery, or immediate post-delivery resuscitation during which such injury occurs, arising out of or related to a medical negligence claim with respect to such injury.7 The statute, however, allows for civil claims where there is clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property, provided that such suit is filed prior to and in lieu of payment of an award under NICP.8 Indiana In 1975, Indiana enacted the Indiana Medical Practice Act that established a Patient Compensation Fund.9 The Patient Compensation Fund covers a wide range of practitioners and institutions, including physicians, nurses, emergency medical technicians, optometrists, hospitals, HMOs, ambulance services, home health agencies, and mental health and retardation services. The Patient Compensation Fund functions as a system of excess insurance for health care providers. To become a “qualified provider,” entitled to the benefits of the Act, a health care provider must file proof of financial responsibility and pay the surcharge assessed by the Commissioner of Insurance to support the Fund.10 The surcharge varies between types of participants and specialties. A qualified provider establishes financial responsibility by purchasing malpractice liability insurance. Effective July 1, 1999, required limits for physicians are $250,000 per occurrence and $750,000 in the annual aggregate, while required limits for hospitals are $250,000 per occurrence and $5,000,000 in the annual aggregate, if the hospital has not more than one hundred beds, or $7,500,000 in the annual aggregate, if the hospital has more than one hundred beds. (Other aggregate limits are prescribed for other health care entities.)11 The limits required as of July 1, 1999, are two and one-half times the previous limits. Hospitals may qualify with a self-insurance plan at the discretion of the Commissioner.12 The maximum liability of a qualified provider for an

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occurrence is limited to the amount of required insurance. The Patient Compensation Fund is liable for the excess over what is owed by all the qualified providers, up to an overall damage cap – currently set at $1,250,000.13 Attorney fees in the prosecution of a claim are also limited to fifteen percent (15%) of any award made from the Fund. The Fund also covers amounts in excess of the required aggregates and amounts owed by insurers that fail to pay.14 Although participation in the system is voluntary, virtually all physicians participate in the system because caps on liability are limited to participants. Kansas The 1976 Health Care Providers Insurance Availability Act (“HCPIAA”) created the Health Care Stabilization Fund in an effort to stabilize the availability of medical professional liability coverage for health care providers.15 The law mandates a basic liability requirement for certain health care providers – currently $200,000 per claim, subject to a $600,000 annual aggregate - and establishes an availability plan in order to provide required basic professional liability insurance coverage for those providers of health care in Kansas unable to obtain such coverage from the commercial market.16 The Fund receives its funding from professional liability coverage surcharge payments made by health care providers. The Fund covers a wide range of practitioners and institutions, including physicians, chiropractors, nurses, podiatrists, dentists, medical care facilities, and mental health clinics and centers. The Fund is administered by a 10-member board. The primary function of the Fund is to provide excess professional liability coverage above the basic professional liability coverage. K.S.A. 40-3403.17 Three different fund excess coverage levels are available to health care providers: $100,000/$300,000; $300,000/$900,000; or $800,000/$2,400,000.18 Typically, the Fund’s coverage is “triggered” when the basic professional liability insurer’s projected loss exposure exceeds $200,000. Unlike some states, the liability of participating members in the Fund is not capped and the member decides whether to purchase coverage beyond the fund coverage limits. Louisiana During the 1975 legislative session, the Louisiana Legislature passed La. R.S. 40:1231.1 et seq. creating the Louisiana Patient’s Compensation Fund (“PCF”). The Act was created to provide coverage to private healthcare providers in Louisiana, ensuring that a stable and affordable market existed for malpractice insurance to keep practitioners in the state. In addition, the Act sought to create a viable fund for compensating claimants. The Act provides that claims against “Qualified Healthcare Providers” are capped at $500,000, plus past and future medical expenses.19 This $500,000 cap applies not only to all non-economic damages like pain and suffering but also to claims for lost wages. The definition of “Qualified Healthcare Provider” is very broad to include virtually every type of individual or entity providing healthcare to people. To be considered as a “Qualified Healthcare Provider” in the private sector, that provider generally needs to make premium payments into the Louisiana Patient's Compensation Fund.20 If a healthcare provider chooses not to participate by paying such premiums, then that healthcare provider does not receive the benefits of the medical malpractice act, including the cap on damages. In other words, there would be no cap against that healthcare provider’s claims. The PCF is governed by the Patient’s Compensation Fund Oversight Board.21 Healthcare providers who choose to enroll in the PCF remain responsible for the first $100,000 of each claim.22 The PCF provides coverage for the second layer of $400,000 plus all related medical expenses.23 Virtually all Louisiana physicians participate in the Fund. Nebraska

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Nebraska enacted the Nebraska Hospital-Medical Liability Act in 1976. The Act addresses only those professional liability issues associated with physicians, nurse anesthetists, and certain medical facilities, including hospitals. The Act, in part, created an Excess Liability Fund.24 In order to be covered by the Fund, the participants must obtain a $500,000/$1,000,000 basic professional liability policy from an insurance company qualified in Nebraska, send proof of coverage to the Department of Insurance, pay an annual surcharge to the Fund – which may not exceed 50% of the premium for basic liability insurance coverage – and display in a suitable location an approved notice that the participant has elected to be included under the act.25 In the case of hospitals and their employees, the statute requires an aggregate liability amount of $3 million for all claims.26 As long as the participant remains qualified under the Fund, and unless the patient has elected not to be governed by the Act, the participant’s liability is limited to $500,000 per claim.27 The total patient award, however, may not exceed $2,250,000 for any occurrence taking place after December 31, 2014.28 Any amount due from a judgment or settlement which is in excess of the total liability of all liable health care providers is paid from the Excess Liability Fund. New Mexico The New Mexico Patient Compensation Fund (“PCF”) was established in 1978 by the New Mexico Medical Malpractice Act.29 The purpose of the PCF is to promote the availability of coverage for medical professional liability to health care providers practicing in New Mexico. The PCF is funded solely through the surcharges paid by its participants and is administrated by the Superintendent of Insurance.30 Doctors of medicine, Doctors of Osteopathy, Chiropractors, Podiatrists, Nurse Anesthetists, Physicians' Assistants, Hospitals, and Outpatient Healthcare Facilities can participate in the Fund. Most health care providers participating in the PCF meet the financial responsibility requirements of the Act by purchasing medical malpractice insurance policies written on occurrence policy forms at $200,000 per claim from PCF authorized insurers.31 For hospitals and outpatient health care facilities, the amount of coverage is decided by the Superintendent of Insurance based on a risk assessment for each hospital or outpatient facility.32 These insurers collect the primary layer of premium and the PCF surcharge from the health care provider and remit it to the PCF.33 The PCF provides an excess layer of coverage to doctors, hospitals, and other health care providers who qualify under the provisions of the Medical Malpractice Act. The PCF provides limitations on monetary awards, time limits for filing claims, and mandatory panel review of claims. In this regard, and except for punitive damages and medical care and related benefits, the aggregate dollar amount recoverable by all persons arising from an injury or death to a patient as a result of malpractice shall not exceed $600,000.34 Payment of accrued medical care and related benefits and future medical expenses are not subject to the limit. Instead, those amounts are paid by the Fund. A healthcare provider not qualifying under the statute is not entitled to the benefit of any of the provisions of the Medical Malpractice Act. New York New York continues to have the highest medical malpractice costs of any state in the country. Recognizing this, the New York Legislature created the New York State Medical Indemnity Fund in 2011.35 The New York Medical Indemnity Fund provides a funding source for future health care costs associated with birth-related neurological injuries in order to reduce premium costs for medical malpractice insurance claims.36 Specifically, the fund pays for “qualifying health care costs,” which includes future medical, hospital, surgical, nursing, dental, rehabilitation, custodial, durable medical equipment, home modifications, assistive technology, vehicle modifications,

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prescription and non-prescription medications, and other health care costs actually incurred for services rendered to and supplies utilized by qualified plaintiffs, which are necessary to meet their health care needs.37 The costs are paid on behalf of “qualified plaintiffs,” defined as every plaintiff or claimant who (i) has been found by a jury or court to have sustained a birth-related neurological injury as the result of medical malpractice, or (ii) has sustained a birth-related neurological injury as the result of alleged medical malpractice, and has settled his or her lawsuit or claim.38 The Fund is administered by the Superintendent of the Department of Financial Services (“DFS”).39 When a settlement agreement “aris[es] out of a ... birth related neurological injury,” the settlement must provide that “in the event the administrator of the fund determines that the ... claimant is a qualified plaintiff, all payments for future medical expenses shall be paid in accordance with this title, in lieu of that portion of the settlement agreement that provides for payment of such expenses.”40 When such a settlement does not so provide, the Court shall direct its modification to include this language. In any case in which a jury or judge has made an award of future medical expenses arising out of a birth-related neurological injury, the future medical expenses of the plaintiff are paid out of the fund so long as the injury is covered by the statute. Enrollees of the Fund are plaintiffs in medical malpractice actions who have received either court-approved settlements or judgments deeming the plaintiffs' neurological impairments to be birth-related. In June, 2015, the New York Senate introduced a bill seeking to expand the Indemnity Fund to all plaintiffs with neurological injuries, regardless of age and regardless of whether caused at birth. The bill was introduced by Senator Kemp Hannon (R— 6th District) and has been referred to the Rules Committee. Pennsylvania In 2002, the Pennsylvania Legislature created the Medical Care Availability and Reduction of Error Fund (“Mcare Fund”).41 The Mcare Fund is the successor to the Medical Professional Liability Catastrophe Loss Fund, better known as the “CAT Fund” which was originally established in 1975. Participation in the Mcare Fund is mandatory for licensed Pennsylvania physicians rendering care to 50% of patients in Pennsylvania and it also covers nurse midwifes, hospitals, nursing homes, and birth centers. Currently, physicians are required to have $1,000,000 per occurrence limits (and $3 million per annual aggregate) in total limits. The physician must obtain the first $500,000 in primary liability coverage ($1.5 million annual aggregate).42 Physicians acquire the second layer from the Mcare Fund. Physicians can obtain the first $500,000 layer either in the private market or through the Joint Underwriting Association (JUA).43 For hospitals, the total required coverage amounts are $1 million per occurrence and $4 million per annual aggregate.44 Hospitals must obtain primary coverage in the amount of $500,000 per occurrence and $2.5 million per annual aggregate.45 The Mcare Fund provides participating hospitals with $500,000 per occurrence and $1.5 million annual aggregate in excess limits.46

The assessments for the Mcare Fund vary significantly and the annual assessments are collected and then paid to the state by the basic professional liability insurer.47 The Mcare Fund, and the associated legislation, does not cap liability to those required by the Mcare Act. Thus, health care providers remain liable for amounts in excess of the required minimum limits and may purchase additional excess coverage from private insurers to provide coverage in excess of the Mcare Fund.48 South Carolina South Carolina created the South Carolina Medical Malpractice Compensation Fund (“Fund”) in 1976.49 The Fund was created for the purpose of paying that portion of a medical malpractice claim, settlement or judgment which is in excess of $200,000 for each incident or in excess of $600,000 in the aggregate for one year, up to

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the amounts determined by the Board of Governors.50 The Fund is liable only for payment of claims against licensed health care providers in compliance with the provisions of the Enabling Statute Title 38, Chapter 79, Article 5 and includes reasonable and necessary expenses incurred in payment of claims and the Fund’s administrative expense. Most healthcare providers in the state obtain their insurance through the Joint Underwriting Association (“JUA”) and Fund. Unlike the JUA, which is a nonprofit corporation whose members are the insurance companies authorized to sell malpractice insurance, the Fund is a state agency governed by a 13-member board appointed by the governor.51 All health care providers have the option of participating in the Fund.52 As members, the health care provider must pay an annual fee.53 Upon being served with a complaint, the health care provider notifies the Fund’s Board of Governors of the action.54 If the board determines that the damage amounts may exceed $200,000, the Fund can actively defend the suit. The insurer providing liability insurance to the health care provider must provide an adequate defense so as to prevent impairment of the Fund. Settlements that exceed $200,000 must be approved by the Board of Governors. South Carolina does not impose a cap on the amount of damages that a claimant can recover in a medical malpractice case so the Fund does not act as a liability cap on damages. Virginia In 1987, Virginia enacted the Virginia Birth-Related Neurological Injury Compensation Act.55 The Act removed claims against physicians who practice obstetrical medicine from the traditional tort system and the rights and remedies provided to infants under the Act exclude all other rights and remedies at common law or otherwise arising out of or related to a medical malpractice claim with respect to such injury to the infant, including claims by the infant’s personal representatives, parents, dependents or next of kin for claims of emotional distress proximately related to the injury.56 The Act, however, does not foreclose the claims of the infant’s mother for injuries she suffered during delivery and it does not foreclose civil actions against physicians or hospitals where there is clear and convincing evidence that such physician or hospital intentionally or willfully caused or intended to cause a birth-related neurological injury, provided that such suit is filed prior to and in lieu of payment of an award under this chapter.57 The program is funded by annual assessments paid by participating and non-participating physicians and hospitals and liability insurers. To be eligible for the program, an infant must meet the definition in the act for a birth-related neurological injury, and the obstetrical services must have been performed by a physician or at a hospital that specifically participates in the birth injury program. Administration of the Birth-Related Neurological Injury Compensation Program (birth injury program) involves the program staff and two State agencies. The Workers' Compensation Commission (WCC) conducts hearings and determines eligibility for claimants who seek entry into the program. The State Corporation Commission (SCC) has certain financial responsibilities vis-à-vis the fund. The birth injury board of directors administers the program and the fund. Section 38.2-5009 of the Code of Virginia identifies three broad categories of benefits that the program is to provide. First, it states that compensation will be provided for all “medically necessary and reasonable expenses of medical and hospital, rehabilitative, residential and custodial care and service, special equipment or facilities, and related travel,” except those for which the claimant has already received reimbursement either under the laws of another government entity or the policy of another private insurance program. Second, it provides payment (in regular installments) for loss of earnings from the age of 18 until 65. Third, it allows for reimbursement of “reasonable expenses incurred in connection with the filing of a claim . . . including reasonable attorney fees.”

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West Virginia In 2004, the West Virginia Legislature created the West Virginia Patient Injury Compensation Fund (“Fund”).58 The purpose of the fund is to provide compensation to claimants in medical malpractice actions for any portion of economic damages awarded that is uncollectible as a result of limitations on economic damages awards for trauma care, or as a result of the operation of joint and several liability principles and standards.59 The Fund is administered by the Board of Risk and Insurance Management.60 In order to receive payment, a qualified claimant must establish that he or she has exhausted all reasonable means to recover from all applicable liability insurance.61 The benefits under the Fund shall not exceed $1 million or the maximum amount of money that could have been collected from all applicable insurance prior to the creation of the Fund, regardless of the number of plaintiffs or claimants.62 In addition, payments out of the Fund may be used to pay reasonable attorney fees of attorneys representing qualified claimants receiving compensation.63 Wisconsin Wisconsin established the Injured Patients and Families Compensation Fund (“Fund”) in 1975.64 The Fund was established for the purpose of paying that portion of a medical malpractice claim which is in excess of the statutory minimums or the maximum liability limit for which the health care provider is insured, whichever is greater, and paying future medical expense payments.65 The Wisconsin statute requires health care providers to maintain health care liability insurance of at least $1 million each occurrence and $3 million for all occurrences in any one year and to and to participate in the Fund by paying assessments that help to fund claims greater than these amounts.66 The Fund provides participating physicians and other health care providers in Wisconsin with secondary medical malpractice insurance to cover claims that exceed the coverage limits of their primary insurance. There is no limit to the compensation the Fund will pay on behalf of participating providers for economic damages, such as medical costs and loss of income. Noneconomic damages, which include compensation for suffering, mental distress, and loss of companionship and affections, are currently limited by statute to $750,000.67 The Fund is governed by a 13-member Board of Governors. The Office of the Commissioner of Insurance has statutory responsibility for administering the Fund. Wyoming In 1977, the Wyoming legislature created a medical liability compensation fund to provide physicians with excess insurance coverage.68 To qualify for the Fund, a physician must annually purchase health care liability insurance coverage of not less than $50,000 per occurrence for any act, error or omission relating to medical care rendered during a policy year and pay the surcharge pursuant to § 26-33-105(c)69 The surcharge shall not exceed one hundred fifty percent (150%) of the cost to each physician for a basic fifty thousand dollar ($50,000.00) malpractice insurance premium and shall be collected on the same basis as premiums by each insurer from the physician.70 The surcharge is collected and paid by the professional liability insurer. A qualified physician’s liability is limited to $50,000 per claim, except that if the insurance procured by the physician exceeds $50,000, the physician is liable to the extent of his insurance limits.71 A medical malpractice judgment or settlement in excess of $50,000 against a qualified physician is paid by the fund to the extent of $1,000,000 per year per physician.72 Any settlement of a claim in excess of $50,000 requires the approval of the commissioner.73

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IV. 50 State Summary of Apology Laws

State

Statutes, Regulations and Rules

Key Provisions

Alabama None

Alaska None

Arizona Ariz. Rev. Stat. Ann. § 12-2605 In any civil action that is brought against a health care provider as defined in § 12-561 or in any arbitration proceeding that relates to the civil action, any statement, affirmation, gesture or conduct expressing apology, responsibility, liability, sympathy, commiseration, condolence, compassion or a general sense of benevolence that was made by a health care provider or an employee of a health care provider to the patient, a relative of the patient, the patient's survivors or a health care decision maker for the patient and that relates to the discomfort, pain, suffering, injury or death of the patient as the result of the unanticipated outcome of medical care is inadmissible as evidence of an admission of liability or as evidence of an admission against interest.

Arkansas None

California Cal. Evid. Code § 1160

The portion of statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident and made to that person or to the family of that person shall be inadmissible as evidence of an admission of liability in a civil action. A statement of fault, however, which is part of, or in addition to, any of the above shall not be inadmissible pursuant to this section.

Colorado Colo. Rev. Stat. Ann §13-25-135 In any civil action brought by an alleged victim of an unanticipated outcome of medical care, or in any arbitration proceeding related to such civil action, any and all statements, affirmations, gestures, or conduct expressing apology, fault, sympathy, commiseration, condolence, compassion, or a general sense of benevolence which are made by a health care provider or an employee of a health care provider to the alleged victim, a relative of the alleged victim, or a representative of the alleged victim and which relate to the discomfort, pain, suffering, injury, or death of the alleged victim as the result of the unanticipated outcome of medical care shall be inadmissible as evidence of an admission of liability or as evidence of an admission against interest.

Connecticut Conn. Gen. Stat. Ann §52-184d In any civil action brought by an alleged victim of an unanticipated outcome of medical care, or in any arbitration proceeding related to such civil action, any and all statements, affirmations, gestures or conduct expressing apology, fault, sympathy, commiseration, condolence, compassion or a general sense of benevolence that are made by a health care provider or an employee of a health care provider to the alleged victim, a relative of the alleged victim or a representative of the alleged victim and that relate to the discomfort, pain, suffering, injury or death of the alleged victim as a result of the unanticipated outcome of medical care shall

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State

Statutes, Regulations and Rules

Key Provisions

be inadmissible as evidence of an admission of liability or as evidence of an admission against interest.

Delaware Del. Code. Ann. tit 10. §4318

Any and all statements, writings, gestures, or affirmations made by a health care provider or an employee of a health care provider that express apology (other than an expression or admission of liability or fault), sympathy, compassion, condolence, or benevolence relating to the pain, suffering, or death of a person as a result of an unanticipated outcome of medical care, that is made to the person, the person's family, or a friend of the person or of the person's family, with the exception of the admission of liability or fault, are inadmissible in a civil action that is brought against a health care provider.

District of Columbia

D.C. Code §16-2841 For the purpose of any civil action or administrative proceeding alleging medical malpractice against a healthcare provider, an expression of sympathy or regret made in writing, orally, or by conduct made by or on behalf of the healthcare provider to a victim of the alleged medical malpractice, any member of the victim's family, or any individual who claims damages by or through that victim, is inadmissible as an admission of liability. Nothing herein shall preclude the court from permitting the introduction of an admission of liability into evidence.

Florida Fla. Stat. Ann. §90.4026

The portion of statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident and made to that person or to the family of that person shall be inadmissible as evidence in a civil action. A statement of fault, however, which is part of, or in addition to, any of the above shall be admissible pursuant to this section.

Georgia Ga. Code Ann. §24-4-416 In any claim or civil proceeding brought by or on behalf of a patient allegedly experiencing an unanticipated outcome of medical care, any and all statements, affirmations, gestures, activities, or conduct expressing regret, apology, sympathy, commiseration, condolence, compassion, mistake, error, or a general sense of benevolence which is made by a health care provider or an employee or agent of a health care provider to the patient, a relative of the patient, or a representative of the patient and which relates to the unanticipated outcome shall be inadmissible as evidence and shall not constitute an admission of liability or an admission against interest.

Guam Guam Code Ann. tit. 10, §11112 In any civil action that is brought against a health professional, as defined in § 11102, or in any arbitration proceeding that relates to the civil action, a statement, writing or benevolent gesture that: (1) expresses sympathy or a general sense of benevolence relating to the pain, suffering or death of the patient involved in the incident with the health professional; and

xxix

State

Statutes, Regulations and Rules

Key Provisions

(2) is made to the patient or to the family of the patient is inadmissible as evidence of an admission of liability. A statement of fault, however, which is part of, or in addition to, any of the above shall be admissible.

Hawaii Haw. Rev. Stat. §626-1, Rule 409.5 Evidence of statements or gestures that express sympathy, commiseration, or condolence concerning the consequences of an event in which the declarant was a participant is not admissible to prove liability for any claim growing out of the event. This rule does not require the exclusion of an apology or other statement that acknowledges or implies fault even though contained in, or part of, any statement or gesture excludable under this rule.

Idaho Idaho Code Ann. §9-207 In any civil action brought by or on behalf of a patient who experiences an unanticipated outcome of medical care, or in any arbitration proceeding related to, or in lieu of, such civil action, all statements and affirmations, whether in writing or oral, and all gestures or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence, including any accompanying explanation, made by a health care professional or an employee of a health care professional to a patient or family member or friend of a patient, which relate to the care provided to the patient, or which relate to the discomfort, pain, suffering, injury, or death of the patient as the result of the unanticipated outcome of medical care shall be inadmissible as evidence for any reason including, but not limited to, as an admission of liability or as evidence of an admission against interest.

Illinois None

Indiana Ind. Code § 34-43.5-1-4 Except as provided in section 5 of this chapter, a court may not admit into evidence a communication of sympathy that relates to (1) a loss; (2) an injury; (3) pain; (4) suffering; (5) a death; or (6) damage to property.

Iowa Iowa Code §622.31

In any civil action for professional negligence, personal injury, or wrongful death or in any arbitration proceeding for professional negligence, personal injury, or wrongful death against a person in a profession regulated by one of the boards listed in section 272C.1 or in any other licensed profession recognized in this state, a hospital licensed pursuant to chapter 135B, or a health care facility licensed pursuant to chapter 135C, based upon the alleged negligence in the practice of that profession or occupation, that portion of a statement, affirmation, gesture, or conduct expressing sorrow, sympathy, commiseration, condolence, compassion, or a general sense of benevolence that was made by the person to the plaintiff, relative of the plaintiff, or decision maker for the plaintiff that relates to the discomfort, pain, suffering, injury, or death of the plaintiff as a result of an alleged breach of the applicable standard of care is inadmissible as evidence. Any response by the plaintiff, relative of the

xxx

State

Statutes, Regulations and Rules

Key Provisions

plaintiff, or decision maker for the plaintiff to such statement, affirmation, gesture, or conduct is similarly inadmissible as evidence.

Kansas None . Kentucky None

Louisiana La. Rev. Stat. Ann. §13:3715.5 Any communication, including but not limited to an oral or written statement, gesture, or conduct by a health care provider expressing or conveying apology, regret, grief, sympathy, commiseration, condolence, compassion, or a general sense of benevolence made to a patient, a relative of the patient, or an agent or representative of the patient, shall not constitute an admission as defined in Code of Evidence Article 801(D)(2) or a statement against interest as defined in Code of Evidence Article 804(B)(3), and shall not be admissible in evidence to establish liability or for any other purpose, including impeachment, in a medical review panel proceeding, arbitration proceeding, or civil action brought by or on behalf of the patient or by or on behalf of an heir, survivor, statutory beneficiary, or agent or representative of the patient against the health care provider who made the communication. A statement of fault, however, which is part of, or in addition to, any such communication shall not be made inadmissible pursuant to this Section.

Maine Me. Rev. Stat. Ann. tit. 24 §2907 In any civil action for professional negligence or in any arbitration proceeding related to such civil action, any statement, affirmation, gesture or conduct expressing apology, sympathy, commiseration, condolence, compassion or a general sense of benevolence that is made by a health care practitioner or health care provider or an employee of a health care practitioner or health care provider to the alleged victim, a relative of the alleged victim or a representative of the alleged victim and that relates to the discomfort, pain, suffering, injury or death of the alleged victim as the result of the unanticipated outcome is inadmissible as evidence of an admission of liability or as evidence of an admission against interest. Nothing in this section prohibits the admissibility of a statement of fault.

Maryland Md. Code Ann., Cts & Jud Proc §10-920

Except as provided in paragraph (2) of this subsection, in a proceeding subject to Title 3, Subtitle 2A of this article or a civil action against a health care provider, an expression of regret or apology made by or on behalf of the health care provider, including an expression of regret or apology made in writing, orally, or by conduct, is inadmissible as evidence of an admission of liability or as evidence of an admission against interest. (2) An admission of liability or fault that is part of or in addition to a communication made under paragraph (1) of this subsection is admissible as evidence of an admission of liability or as evidence of an admission against interest in an action described under paragraph (1) of this subsection.

xxxi

State

Statutes, Regulations and Rules

Key Provisions

Massachusetts Mass. Gen. Laws Ann. ch 233 §23d Statements, writings or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering or death of a person involved in an accident and made to such person or to the family of such person shall be inadmissible as evidence of an admission of liability in a civil action.

Michigan Mich. Laws. Ann. ch. 600.2155

A statement, writing, or action that expresses sympathy, compassion, commiseration, or a general sense of benevolence relating to the pain, suffering, or death of an individual and that is made to that individual or to the individual's family is inadmissible as evidence of an admission of liability in an action for medical malpractice. (2) This section does not apply to a statement of fault, negligence, or culpable conduct that is part of or made in addition to a statement, writing, or action described in subsection (1).

Minnesota None Mississippi None Missouri Mo. Rev. Stat. §538.229 The portion of statements, writings, or benevolent

gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person and made to that person or to the family of that person shall be inadmissible as evidence of an admission of liability in a civil action. However, nothing in this section shall prohibit admission of a statement of fault.

Montana Mont. Code Ann. §26-1-814 A statement, affirmation, gesture, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence relating to the pain, suffering, or death of a person that is made to the person, the person's family, or a friend of the person or of the person's family is not admissible for any purpose in a civil action for medical malpractice.

Nebraska Neb. Rev. Stat. §27-1201 In any civil action brought by an alleged victim of an unanticipated outcome of medical care, or in any arbitration proceeding related to such civil action, any and all statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence which are made by a health care provider or an employee of a health care provider to the alleged victim, a relative of the alleged victim, or a representative of the alleged victim and which relate to the discomfort, pain, suffering, injury, or death of the alleged victim as a result of the unanticipated outcome of medical care shall be inadmissible as evidence of an admission of liability or as evidence of an admission against interest. A statement of fault which is otherwise admissible and is part of or in addition to any such communication shall be admissible.

Nevada None New Hampshire N.H. Rev. Stat. Ann. §507-E:4 II. A statement, writing, or action that expresses

sympathy, compassion, commiseration, or a general

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sense of benevolence relating to the pain, suffering, or death of an individual and that is made to that individual or to the individual's family is inadmissible as evidence of an admission of liability in a medical injury action. III. This section does not apply to a statement of fault, negligence, or culpable conduct that is part of or made in addition to a statement, writing, or action described in paragraph II.

New Jersey None

New Mexico None New York None North Carolina N.C. Gen. Stat. §8C-1, Rule 413 Statements by a health care provider apologizing for an

adverse outcome in medical treatment, offers to undertake corrective or remedial treatment or actions, and gratuitous acts to assist affected persons shall not be admissible to prove negligence or culpable conduct by the health care provider in an action brought under Article 1B of Chapter 90 of the General Statutes

North Dakota N.D. Cent. Code §31-04-12 A statement, affirmation, gesture, or conduct of a health care provider, or health care provider's employee or agent, which expresses apology, sympathy, commiseration, condolence, compassion, or benevolence to a patient or to a patient's relative or representative is not admissible as evidence of liability or as an admission against interest in a civil action, arbitration proceeding, or administrative hearing regarding the health care provider.

Ohio Ohio Rev. Code. Ann §2317.43 In any civil action brought by an alleged victim of an unanticipated outcome of medical care or in any arbitration proceeding related to such a civil action, any and all statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence that are made by a health care provider or an employee of a health care provider to the alleged victim, a relative of the alleged victim, or a representative of the alleged victim, and that relate to the discomfort, pain, suffering, injury, or death of the alleged victim as the result of the unanticipated outcome of medical care are inadmissible as evidence of an admission of liability or as evidence of an admission against interest.

Oklahoma Okla. Stat. tit 63 §1-1708.1 H In any medical liability action, any and all statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence which are made by a health care provider or an employee of a health care provider to the plaintiff, a relative of the plaintiff, or a representative of the plaintiff and which relate solely to discomfort, pain, suffering, injury, or death as the result of the unanticipated outcome of the medical care shall be inadmissible as evidence of an admission of liability or as evidence of an admission against interest.

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Oregon Or. Rev. Stat §677.082 For the purposes of any civil action against a person licensed by the Oregon Medical Board or a health care institution, health care facility or other entity that employs the person or grants the person privileges, any expression of regret or apology made by or on behalf of the person, the institution, the facility or other entity, including an expression of regret or apology that is made in writing, orally or by conduct, does not constitute an admission of liability.

Pennsylvania Pa. Stat. tit. 35, §10228.1 et seq. This section applies to any benevolent gesture made prior to the commencement of a medical professional liability action, administrative action, mediation or arbitration: (1) by a health care provider or an officer, employee or agent of a health care provider to a patient or resident or the patient's or resident's relative or representative regarding the patient's or resident's discomfort, pain, suffering, injury or death, regardless of the cause, resulting from any treatment, consultation, care or service or omission of treatment, consultation, care or service provided by the health care provider, assisted living residence or its employees, agents or contractors; or * ** Except as set forth in paragraph (2), any benevolent gesture described in subsection (a) shall be inadmissible as evidence of liability.

Rhode Island None

South Carolina S.C. Code Ann. §19-1-190(D) In any claim or civil action brought by or on behalf of a patient allegedly experiencing an unanticipated outcome of medical care, any and all statements, affirmations, gestures, activities, or conduct expressing benevolence, regret, apology, sympathy, commiseration, condolence, compassion, mistake, error, or a general sense of benevolence which are made by a health care provider, an employee or agent of a health care provider, or by a health care institution to the patient, a relative of the patient, or a representative of the patient and which are made during a designated meeting to discuss the unanticipated outcome shall be inadmissible as evidence and shall not constitute an admission of liability or an admission against interest.

South Dakota S.D. Codified Laws §19-19-411.1

No statement made by a health care provider apologizing for an adverse outcome in medical treatment, no offer to undertake corrective or remedial treatment or action, and no gratuitous act to assist affected persons is admissible to prove negligence by the health care provider in any action for damages for personal injury or death alleging malpractice against any health care provider. Nothing in this section prevents the admission, for the purpose of impeachment, of any statement constituting an admission against interest by the health care provider making such statement.

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Tennessee Tenn. Code Ann., Rule 409.1 That portion of statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering or death of a person involved in an accident and made to such person or to the family of such person shall be inadmissible as evidence of an admission of liability in a civil action. A statement of fault that is part of, or in addition to, any of the above shall not be inadmissible because of this Rule.

Texas Tex .Rev. Civ. Prac. & Rem. Code Ann §18.061

A court in a civil action may not admit a communication that: (1) expresses sympathy or a general sense of benevolence relating to the pain, suffering, or death of an individual involved in an accident;(2) is made to the individual or a person related to the individual within the second degree by consanguinity or affinity, as determined under Subchapter B, Chapter 573, Government Code; and (3) is offered to prove liability of the communicator in relation to the individual.

Utah Utah Rules of Evidence, Rule 409 Evidence of unsworn statements, affirmations, gestures, or conduct made to a patient or a person associated with the patient by a defendant that expresses the following is not admissible in a malpractice action against a health care provider or an employee of a health care provider to prove liability for an injury; (1) apology, sympathy, commiseration, condolence, compassion, or general sense of benevolence; or (2) a description of the sequence of events relating to the unanticipated outcome of medical care or the significance of events.

Vermont Vt. Stat. Ann. tit 12 §1912 In any civil or administrative proceeding against a health care provider or health care facility, including any arbitration or mediation proceeding, the health care provider, health care facility, or any other person who makes an oral expression of regret or apology, including any oral good faith explanation of how a medical error occurred, on behalf of the provider or facility, that is provided within 30 days of when the provider or facility knew or should have known of the consequences of the potential adverse outcome, may not be examined by deposition or otherwise with respect to the expression of regret, apology, or explanation.

Virginia Va. Code Ann. §8.01-581.20:1 In any civil action brought by an alleged victim of an unanticipated outcome of health care, or in any arbitration or medical malpractice review panel proceeding related to such civil action, the portion of statements, writings, affirmations, benevolent conduct, or benevolent gestures expressing sympathy, commiseration, condolence, compassion, or a general sense of benevolence, together with apologies that are made by a health care provider or an agent of a health care provider to the patient, a relative of the patient, or a representative of the patient, shall be inadmissible as evidence of an admission of liability or as evidence of an admission against interest. A statement of fault that is part of or in addition to any of the above shall not be made inadmissible by this section.

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Washington Wash. Rev. Code Ann §5.64.010 In a civil action against a health care provider for personal injuries that is based upon alleged professional negligence, or in any arbitration or mediation proceeding related to such civil action, a statement, affirmation, gesture, or conduct identified in (b) of this subsection is not admissible as evidence if: (i) It was conveyed by a health care provider to the injured person, or to a person specified in RCW 7.70.065 (1)(a) or (2)(a) within thirty days of the act or omission that is the basis for the allegation of professional negligence or within thirty days of the time the health care provider discovered the act or omission that is the basis for the allegation of professional negligence, whichever period expires later; and (ii) It relates to the discomfort, pain, suffering, injury, or death of the injured person as the result of the alleged professional negligence. (b) (a) of this subsection applies to: (i) Any statement, affirmation, gesture, or conduct expressing apology, fault, sympathy, commiseration, condolence, compassion, or a general sense of benevolence; or (ii) Any statement or affirmation regarding remedial actions that may be taken to address the act or omission that is the basis for the allegation of negligence.

West Virginia W. Va. Code §55-7-11a No statement, affirmation, gesture or conduct of a healthcare provider who provided healthcare services to a patient, expressing apology, sympathy, commiseration, condolence, compassion or a general sense of benevolence, to the patient, a relative of the patient or a representative of the patient and which relate to the discomfort, pain, suffering, injury or death of the patient shall be admissible as evidence of an admission of liability or as evidence of an admission against interest in any civil action brought under the provisions of article seven-b, chapter fifty-five of this code, or in any arbitration, mediation or other alternative dispute resolution proceeding related to such civil action.

Wisconsin W.S.A. 904.14 A statement, a gesture, or the conduct of a health care provider, or a health care provider's employee or agent, that satisfies all of the following is not admissible into evidence in any civil action, administrative hearing, disciplinary proceeding, mediation, or arbitration regarding the health care provider as evidence of liability or as an admission against interest: (a) The statement, gesture, or conduct is made or occurs before the commencement of the civil action, administrative hearing, disciplinary proceeding, mediation, or arbitration. (b) The statement, gesture, or conduct expresses apology, benevolence, compassion, condolence, fault,

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liability, remorse, responsibility, or sympathy to a patient or his or her relative or representative.

Wyoming Wyo. Stat. Ann. §1-1-130 In any civil action or arbitration brought by an alleged victim of an unanticipated outcome of medical care against a health care provider, any and all statements, affirmations, gestures or conduct expressing apology, sympathy, commiseration, condolence, compassion or a general sense of benevolence that are made by a health care provider or an employee of a health care provider to the alleged victim, or to a relative or representative of the alleged victim, and that relate to the discomfort, pain, suffering, injury or death of the alleged victim as the result of the unanticipated outcome of medical care, are inadmissible as evidence of an admission of liability or as evidence of an admission against interest.

1 F.S.A. § 766.301 2 F.S.A. § 766.303(1) 3 F.S.A. § 766.313 4 F.S.A. § 766.309(1)(a) 5 F.S.A. § 766.309 6 F.S.A. § 766.331 7 F.S.A. § 766.303 8 Id. 9 Ind. Code § 34-18-6-1 et seq. 10 Ind. Code §§ 34-18-2-24.5 and 34-18-3-2. 11 Ind. Code § 34-18-4-1 12 Id. 13 Ind. Code § 34-18-14-3(a)(3) 14 Ind. Code. §§ 34-18-6-6 and 34-18-15-4 15 K.S.A. 40-3401 et seq. 16 K.S.A. 40-3402(a) 17 K.S.A. 40-3403 18 K.S.A. 40-3403(l) 19 La. R.S. 40:1231.2.B.(2) 20 Id. 21 La. R.S. 40:1231.7 22 La. R.S. 40:1231.2B.(2) 23 Id. 24 Neb. Rev. St. § 44-2829 25 Neb. Rev. St. §§ 44.2827 and 44-2824 26 Neb. Rev. St. § 44.2827 27 Neb. Rev. St. § 44-2825(2) 28 Neb. Rev. St. § 44-2825(1) 29 N.M.S.A. 1978, § 41-5-1, et seq. 30 N.M.S.A. 1978, § 41-5-25 31 N.M.S.A. 1978, § 41-5-5 32 Id. 33 N.M.S.A. 1978, § 41-5-25 34 N.M.S.A. 1978, § 41-5-6 35 N.Y. Pub. Health Law § 2999-g et seq. 36 N.Y. Pub. Health Law § 2999-g

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37 N.Y. Pub. Health Law § 2999-h(3) 38 Id. 39 N.Y. Pub. Health Law § 2999-i 40 N.Y. Pub. Health Law § 2999-j(6) 41 40 P.S. § 1303.712 et seq. 42 40 P.S. § 1303.711(d) 43 Id. 44 Id. 45 Id. 46 Id. 47 40 P.S. § 1303.712(d) 48 40 P.S. § 1303.711(h) 49 S.C. Code 1976 § 38-79-410 50 Id. 51 S.C. Code 1976 § 38-79-430 52 S.C. Code Ann. § 38-79-440 53 S.C. Code Ann. § 38-79-450 54 S.C. Code Ann. § 38-79-480 55 Va. Code § 38.2-5000 56 Va. Code § 38.2-5002.B 57 Va. Code § 38.2-5002.C 58 W.Va. Code § 29-12D-1 59 Id. 60 W.Va. Code § 29-12D-2 61 W.Va. Code § 29-12D-3 62 Id. 63 Id. 64 W.S.A. § 655.27 65 Id. 66 W.S.A. § 655.23 67 W.S.A. § 655.017 and W.S.A. § 893.55 68 Wyo. Stat. Ann. §§ 26-33-101 to 26-33-105 69 Wyo. Stat. Ann. § 26-33-102 70 Wyo. Stat. Ann. § 26-33-105(c) 71 Wyo. Stat. Ann. § 26-33-105 72 Id. 73 Wyo. Stat. Ann. § 26-33-107

The information provided herein is general in nature and should not be construed as legal advice. If you require legal advice, you should seek qualified counsel.

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