2002 Medical Professional Liability Insurance Renewals
April 2002
For many physicians, hospitals, or nursing
homes, the search for insurance coverage this year may turn into a journey of
epic proportions. Charles Kolodkin explains.
by Charles
Kolodkin
The Cleveland
Clinic
Ask people to complete a phrase beginning "2001"and you are likely to hear
"2001: A Space Odyssey" in response. Ask someone in the insurance business to
complete a phrase beginning "2002," and you might hear "2002: A Renewal Odyssey"
in response. (Okay, you may have to ask a lot of people before you hear it.)
It's true, though. The quest for medical or healthcare professional insurance
coverage in 2002 can be quite the odyssey. For a physician, hospital, or nursing
home in a difficult location, difficult business sector, or with a checkered
history, the search for insurance coverage in 2002 may turn into a journey of
epic proportions.
Adverse Trends in the Market
As 2002 begins, the liability insurance market for physicians, hospitals,
and other healthcare providers is in the worst state it has been in since at
least 1986. Today's dismal state of the healthcare professional liability insurance
market is due to the conflux of several factors, some of which were created
by the insurance industry, others are environmental, effecting all of American
business.
For example, the poor performance of the stock market that began in 2000
reduced investment portfolios by billions of dollars, with the insurance industry
being particularly hard hit. Although insurance company assets are invested
in a variety of instruments, including both equities and fixed income securities,
the reductions in investment income were noteworthy.
The dramatic bear market illuminated serious problems in the insurance industry:
first, many insurers had engaged in cash flow underwriting, and second, losses
in underwriting portfolios have reduced policyholder surplus and therefore limited
the level of insurers' premium writings for the near future. The results of
this turn in the market are that insurance companies have less capacity to take
risk, and the risks they are willing to take must be underwritten according
to exposure to loss as opposed to premium volume available for investment.
Property
& Casualty Insurance Industry Graph
Insurers today have learned an expensive lesson regarding the dangers of
cash flow underwriting. Actually the course has been taught in the past, but
it seems in 2002 the subject matter is being taken to heart. Insurance companies
don't have to look around very far to see what has happened to their more aggressive
brethren, many of whom have been placed in liquidation or rehabilitation.
Many insurers are also experiencing downgrades in their financials ratings.
In the first 2 months of 2002, A.M. Best has downgraded the financial ratings
of more than double the number of property and casualty insurers than they upgraded.
The insurers of medical professional liability coverage in 2002 recognize they
have a limited amount of capacity, and it must be used wisely. Disciplined underwriting
is the mantra for insurers who realize pricing must be accurate since investment
earnings cannot cover bad loss ratios.
Although the effects of September 11 on the medical professional liability
sector are less direct than on others, insurers are feeling its impact. For
large multi-line insurers, such as CNA or Zurich, capacity is being reallocated,
reducing amounts available for physicians and hospitals. Since medical professional
liability insurance has historically been characterized by limited capacity,
reductions in capacity will not be easily replenished by new investment capital.
Compounding this situation is the decision by St. Paul Insurance Company
in late 2001 to exit the medical professional liability business in its entirety.
St. Paul insured about 10 percent of medical professional liability premiums;
this absence is material and will not be quickly replaced.
Another consequence of the September 11 tragedy on medical professional liability
insurance is the strains placed on the commercial reinsurance market. Since
many reinsurers, similar to insurance companies, suffered considerable losses
from September 11, their capacity has been reduced, causing 2002 reinsurance
rates to skyrocket. Higher reinsurance costs are passed onto the commercial
insurers, who in turn increase the premiums charged to physicians and hospitals.
Another large-scale trend that has affected all companies, particularly insurance
companies and especially medical malpractice insurers, is the rapid escalation
in jury verdicts. In spite of some tort reform initiatives, claims frequencies
for medical malpractice claims have been increasing, chiefly since 1997.
More alarming is the significant rise in claims severity. According to Jury
Verdicts Research, the median medical malpractice jury award went from $375,000
in 1994 to $800,000 in 1999. The number of multi-million dollar verdicts has
increased 25 percent from 1996 to 1999. Indeed, some insurers are reluctant
to take large damage cases to trial, even with strong causation defenses, due
to the unpredictability of jury verdicts. This also raises the settlement value
of cases, which increases claims severity, which causes the insurance company
loss ratios to go up, resulting in premium hikes.
How Insurers See Things
As previously mentioned, insurance companies writing medical professional
liability coverage in 2002 have rediscovered that underwriting drives earnings.
Insurers intend to achieve profitability in their underwriting results and not
be influenced by investment income or market share considerations. The actuarial
department now has as much clout as the marketing department. Since insurers
have diminished capital capacity to take risks, they are being more judicious
in which risks they will write. Besides a risk's loss history, underwriters
today are closely examining its industry sector, location or venue, size of
the risk, quality of the risk, financial characteristics, and coverage program.
Industry classes are being scrutinized and less favorable segments, such
as correctional medicine and emergency medicine, are having difficulty garnering
much interest from insurance companies. Physicians and hospitals in jurisdictions
with "plaintiff friendly" reputations—like West Virginia, Eastern Pennsylvania,
South Florida, and South Texas—are being abandoned by their liability insurers.
In some cases, hospital systems or sizable physician practices have a few options,
including taking a bigger deductible, forming a self-insurance fund, or establishing
a captive, whereas smaller physician practices are oftentimes left with one
choice: seeking protection from state assigned risk pools.
Assuming insurers like the class and venue of the risk, the amount of coverage
and the terms offered in 2002 are substantially different than what was available
a year or 2 ago. In 2000 it was common to find an insurance company offering
as much as $50 million in available limits to a hospital risk. Today, most insurers
prefer to restrict the amount of liability coverage written on a single risk
to $10 million.
A small number of insurers do have greater underwriting capacity, but they
are reluctant to offer it except to a few of their most valued accounts. When
issuing excess policies, insurers are also attempting to minimize their risk
by raising the attachment point at which their policy begins paying. In 2000,
excess hospital professional liability policies typically attached at $1 million
to $2 million per claim. Only the very large hospitals in urban settings had
attachments of $3 million. Today, attachment points are more often $2 million
to $3 million per claim, with large, urban hospitals funding the first $5 million
of each claim.
Insurers in 2002 are being increasingly stringent about policy terms and
conditions. Many insurers will not recognize defense expenditures made by a
hospital-insured in determining when the excess policy begins paying. For example,
a hospital with a $2 million underlying retention that incurs $400,000 in defense
costs and is hit with a plaintiff's verdict of $3 million would pay $2.4 million
before the excess insurer paid anything. In the past, the hospital's portion
would have been capped at $2 million since defense expenditures could erode
its underlying payment obligations.
Finally only after determining whether a risk is in an acceptable class of
business, located in an area in which the insurer is interested in operating,
has appropriate risk, quality, and claims management practices, and seeks the
level of coverage the insurer offers, will the insurance company calculate a
premium. The premium quoted in 2002 will almost certainly be higher than what
was offered in 2001, all things (coverages, limits, deductibles) being equal.
Simply put, insurance companies have realized in 2002 that if they are to continue
doing business in the future, they must operate profitably. This means pricing
their product at a level where the combined ratio is under 100 percent.
What an Insured Can Do
An insured in this current hard market—be it a physician or hospital—must
be proactive and plan ahead. Sadly, an insured will be acting prudently if it
budgets for dramatic (perhaps 50 percent or more) premium increases for its
2002-2003 insurance coverage. This will enable it to better manage cash flow.
An insured may be able to mitigate the impact of premium increases by raising
deductibles or reducing the amount of coverage limits maintained.
Being proactive also entails beginning the renewal process early and not
waiting until the last month to approach insurers. It is strongly recommended
that all application materials be submitted to the underwriter at least 60 to
90 days prior to policy expiration. For large physician groups and hospitals,
it is advisable to have a comprehensive underwriting submission to insurers
90 to 120 days before policy expiration.
One goal all insureds should have during these difficult market conditions
is to pin down their current insurer regarding renewal terms and pricing. It
is preferable for an insured to maintain continuity with an insurer, assuming
the insurer is not exiting the market or worse, is in serious financial difficulties.
As early as possible the insured will want to know whether the insurer is raising
retentions, reducing the amount of coverage limits, restricting the conditions
of coverage, and the amount of premium increase. (Note: when discussing premium
increases, the issue is "how much," not "if.") An insured armed with this information
can then determine whether it is productive to actively pursue other options.
It is imperative during hard market times for healthcare providers to have
the counsel of experienced insurance professionals to guide them through the
difficult and confusing underwriting process. An agent or broker, specializing
in the healthcare industry, will be more aware of rapidly changing conditions,
how to present an insured to the market, and what is feasible. Equally important,
agents and brokers who are in the healthcare insurance market everyday will
have more influence with malpractice insurers than someone who works in a variety
of industries.
In the sellers' market that currently exists, insurance companies are literally
inundated with submissions and phone calls from brokers. As would be expected,
underwriters will give priority to proposals made by the brokers they know and
are comfortable working with, rather than some stranger or casual business acquaintance.
As the market tightens, an insured must have the underwriter's attention if
he expects to receive a timely and competitive quote. Finally, just as a broker
has to stay on the underwriter in order to have him look at a submission, the
proactive insured should do the same with the broker to make sure his renewal
is not placed on the back burner.
As a prospective insured or an insured seeking renewal coverage, a healthcare
provider can really help himself by providing the broker and insurer with as
much information as possible. This would include a current application with
supplemental data. In a medical group, each physician should complete an application.
Supplemental data to the application would include copies of curriculum vitaes
for physicians and copies of JCAHO surveys, risk and claims management manuals,
and quality assurance procedures for hospitals.
In addition, a comprehensive underwriting submission must contain a detailed
claims history of the risk. A common requirement is that each prospective insured
supply 10 years of loss data. Providing insurance company computer loss runs
will satisfy this requirement, however, it is desirable that these be recently
valuated to properly identify open cases. Claim information should include the
name of the claimant, the date of the incident, the date the claim was reported,
the status of the claim, and financial data, including payments made and outstanding
reserves.
Conclusion
Today's market for medical professional liability insurance coverage is in
a distressed state. Insurers in this sector have been losing money for a long
time, characterized by year after year of underwriting losses. Claims costs
and other expenses continue to rise, but they can no longer be offset by investment
gains. A number of insurers have been liquidated or left the segment, while
others have seen surplus decrease.
Capacity is diminishing rapidly. The insurers still writing are determined
to make a profit. Buyers of this coverage—physicians and hospitals—are thus
placed in a most challenging environment, an environment where finding adequate
coverage at a reasonable price is an ordeal suitable for a Homeric hero.
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