A regular Source column, Undercurrents explores issues, ideas and events developing beneath the surface in the Virgin Islands community. This is the fourth in a set of stories examining health care services.
On May 15, 2015, St. Croix Attorney Brit Bryant and his client reached a mediated settlement agreement with the V.I. government on a medical malpractice claim.
It’s standard for payments to take up to 30 days, but, Bryant says, the government said it would need 90 days to pay. Believing there was no alternative, his client reluctantly agreed to wait until Aug. 15, 2015.
“And we got paid on April 15 this year,” Bryant said. Even that took his filing for an execution of judgment with the Court to force the issue after repeated prodding.
“They make you wait forever, and then they don’t pay you,” Bryant said. “It’s a slap in the face to people who are already injured.”
That complaint echoes back for decades. In 1999 the Source carried a story about doctors and lawyers criticizing the system. (See link below.)
Bryant and other V.I. attorneys say it’s getting harder and harder for people who want to take on the establishment with a medical malpractice claim to find an attorney to represent them. But they need help.
For one thing, as St. Thomas Attorney Julie Evert put it, “It’s really, really complicated” to navigate the system.
There’s a statute of limitations of two years for such suits. Figuring just when the clock starts ticking can be tricky, depending on the circumstances of the injury. Add to that the fact that you are forbidden by statute to file an action in court until you have first taken it to the Medical Malpractice Action Review Committee, which has 90 days to decide whether or not a claim has merit. But everyone – doctors, lawyers and the government – agree that mechanism has been dormant the last several years, though it was very recently revived.
Perhaps the biggest deterrent, however, is that Virgin Islands law has capped medical malpractice awards against any licensed practitioner at $75,000 for non-economic damages (including disfigurement, physical impairment and pain and suffering) per occurrence, and $250,000 per occurrence for non-economic damages combined with economic damages (things like actual medical costs and lost wages resulting from an injury.)
“We have the lowest benefits” in the U.S., Bryant said. “It’s pretty frightening.”
Attorney Russell Pate, president of the V.I. Bar Association, has made medical malpractice reform one of his causes, peppering the Legislature with statistics and supplying a state-by-state breakdown of caps.
Only seven of the 50 states even have a “total hard cap” on all damages, and those caps range from $1 million to $2 million, according to Pate. The rest of the states are roughly divided between those that have a cap only on non-economic damages and those that impose no cap whatsoever.
A primary argument for caps is that they offer some control over litigious individuals who are motivated by anger or greed to sue for damages they aren’t entitled to.
But the V.I. awards are so low, Pate said, that lawyers won’t take legitimate cases. “The net result is that no citizen in the USVI has access to justice in this area.”
Doctors aren’t happy with the system either. All health care providers in the territory (not only medical doctors) must maintain medical malpractice insurance in order to retain their license to practice. The vast majority of them are covered by the Health Department’s Self Insurance Retention Program, that is, the government’s self insurance plan. They count on that plan to protect them – but sometimes, they say, it doesn’t.
“There’s no question the malpractice situation is in shambles, “ Dr. George Rosenberg, head of the V.I. Equicare, said in an interview early this spring. “The physicians don’t think it works any more that the lawyers … We certainly want to be sheltered from frivolous lawsuits.”
Attempts at Reform
In fact, the bar spearheaded the formation of a special committee to address the situation. Although membership was weighted towards lawyers, it also includes several doctors. It met once in January; the minutes show it was attended by attorneys Amos Carty, Jim Hymes, Nate Mirocha, Dick Knoepfel, Bryant, Pate and Evert and doctors Sam Hughes, Brian Bacot and David Weiser. Listed as “unable to participate,” so presumably part of the committee, were Rosenberg and attorneys Pamela Colon, Robert King, Felice Quigley, George Hodge and Jeffrey Weiss.
The consensus at the meeting, according to the minutes, is that the government “was failing to provide transparency in the medical/legal process regarding medical malpractice premiums, coverage, claims and resolutions.” It was also failing to maintain a functioning Medical Malpractice Action Review Committee, to segregate malpractice funds, (although there is provision in existing law to say they go into the General Fund) to provide mandated reports to the Legislature and to establish the Medical Malpractice Risk Management Trust Fund. There was also a recommendation for the “examination” of existing statutory caps on awards.
Since that meeting, there have been a few developments.
Sen. Kurt Vialet, chairman of the Legislature’s Committee on Health, Hospitals and Human Services, invited members of the medical community and top-ranking government officials to a wide-ranging hearing in early May where they aired concerns about the medical malpractice system.
Attorney General Claude Walker announced that his office would take over the defense of medical malpractice cases.
The Medical Malpractice Action Review Committee was, in Walker’s terms, “re-established” and met on June 29, with another meeting scheduled for August.
It’s not clear exactly how long the committee was inactive. In a written response to questions posed to Walker, the public relations office at Justice said the last meeting the department could find record of was March 23, 2011. But in response to the same question from Vialet’s committee, Health Commissioner Michelle S. Davis said the last formal meeting was May 28, 2013.
Members of the committee serve by virtue of their positions. There are just three members, the government’s Insurance Commissioner, currently Lt. Gov. Osbert Potter, the president of the Bar Association, now Russell Pate, and the president of the V.I. Medical Society, currently Dr. Reva Richardson. If a complaint that comes before the committee involves a nurse, then the president of the V.I. Nurses Association (currently Esther Merla Phillips) is also called on to review the complaint.
There was no clear-cut answer on timing from committee members either. Attorney Felice Quigley, who served as the designee for the president of the bar for many years until Pate stepped in “temporarily” this spring, said the committee was active years ago but then “there was a hiatus” and “I resigned because the committee was essentially not doing anything.” Potter promised to send written comments about the general issue of malpractice, but didn’t do so before leaving the territory for the Olympic Games. Richardson did not return phone messages left at her office over a two week period.
The question is not critical, but the responses – or lack thereof – seem indicative of a general reluctance to discuss the issue of medical malpractice in a public forum.
Vialet said his committee hearing in May “was one of the hardest hearings that we ever conducted. It was really difficult to get information.”
The Health commissioner agreed to a wide-ranging interview for this series only on the condition that it include no questions remotely related to medical malpractice. However, she was more forthcoming at the legislative hearing.
In fact, Davis provided Vialet’s committee with information about the costs of premiums, the numbers of recent settlements and the cost to the government plan.
The government covers the full cost of premiums for providers who work full-time for the government, be it at a hospital, for the Health Department, or in a public clinic. It pays half the cost if the provider works part-time for the government and also maintains a private practice. Providers who work only in private practice must pay for their own insurance. They may opt to take part in the government self-insurance plan or they may obtain malpractice insurance separately. Most use the government plan.
Historically , the plan has been managed within the Health Department’s Risk Management office, which consists of a director and an executive assistant to the director, Davis testified. Annual premiums range broadly, based on the type of service being rendered by a provider.
Samples for the list Davis provided the Legislature include: $288 for a registered nurse, $444 for a physical therapist, $1,254 for a dentist, $2,020 for a general practitioner, $9,494 for a surgeon, $11,026 for an anesthesiologist, $16,566 for a doctor of obstetrics/gynecology.
The list showed the annual amount collected as $728,548.60.
Responding to a written question from the committee, Davis said she was still verifying the amount of claims paid out in the last five years. However, she said there were 14 payments outstanding on mediated cases as of January 2016, and as of May 4, the date of the hearing, there was just one, in the amount of $150,000.
Davis also pointed out the price schedule for premiums has not changed since 1993.
So, the next question has to be: If you raise the caps on awards, will you need to raise the cost of premiums?
Now that the government has made good on the commitment to reinstate the Medical Malpractice Action Review Committee, Vialet said he’s looking forward to getting more data that will help the Legislature make that decision – like how much is collected vs. how much is paid out, on an average basis. “Then we can run the numbers and see if we can increase” the awards.
(Next: the frustrating search for individual health care coverage.)
Note: this story has been updated to correct an error regarding the caps on awards.