OFFICE OF RISK MANAGEMENT REGIONAL CONFERENCE 2008

General Liability and Medical Malpractice Kathleen Gasser Claims Manager 225-342-8433

How about those TIGERS! I love this photo of Mike meeting Mike. I look forward to meeting each of you during and after our presentations.

General Liability Team FRANK FORET, 225-342-8463 Tom Bluff Penny Buchanan Barbara Burns Jimmy Martin Bynie Wells Diane Williams I would like to introduce our teams

General Liability Team JAMES LEA, 225-342-8399 Bertha Meisner Lynda Colomb Geneva Blake James is the supervisor for state property damage claims in addition to supervising CGL adjusters. Some of you will have met him duriing his presentation this morning.

WHAT DO WE COVER? The State of Louisiana provides insurance coverage for third party bodily injury and property damage claims for which the agency could be held legally liable. Third Party= visitors, students, non-worker’s comp injuries, privately owned property damaged due to fault of state, agency or agency personnel. These are your customers, clients, visitors, students who become claimants when there is an allegation of wrongdoing or injury to person or property.

General Liability Claims Claims alleging damages in tort due to negligence by the state of Louisiana and/or state agencies.

The General Liability Policy covers: Premises and Operations Completed Operations and Products Liability Elevator and Escalator Watercraft under 26’ Contractual Liability Wrongful Acts Errors and Omissions Professional Liability Public Officials Custodial Garage Keepers Foster Parents Protective Liability Fire Damage Legal Liability Publisher’s Media Premises and Operations claims include injuries that occur on your grounds and in your facility, such as trip and falls, tree branches that fall and damage private cars in the parking lot.

How a claim is processed An Adjuster is assigned. When your agency sends a notice of claim or lawsuit to our office, this is the progression

CUSTOMER SERVICE One adjuster will handle CGL claims for the entire agency in order to provide more effective customer service. The adjuster will be able to create reports to show the frequency and severity of certain types of losses. We expect to work with Loss Prevention and the Safety and Legal sections of your agency. Our goal is to be able to prevent or lower the number and severity of losses in General Liability.

The adjusting process: 1. Investigation 2. Evaluation 3. Negotiation 4. Settlement Investigation may include your own internal investigation, the adjuster’s investigation to include questions, statements from witnesses, photos and measurements or the assignment of an independent adjuster to come in and take statements, photos and obtain records to evaluate the liability and exposure.

Investigation of Claim The adjuster investigates to determine coverage by ORM Liability and exposure are determined after obtaining the facts of the incident.

Limitation of Liability for Public Entities R.S. 9:2800 …No person shall have a cause of action based solely upon liability imposed under CC Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless it had actual or constructive notice of the vice or defect, had reasonable opportunity to remedy it and failed to do so. Condition of the building, stairs, walkways, sidewalks, etc. Boyle decision (LSU) 22 miles of sidewalk Unreasonable risk of harm or dangerous condition a legal conclusion A municipality is not an insurer of the safety of pedestrians Finding of a defect not enough to establish liability R.S. 9:2800.17 Acts 2006 Immunity of state operational activities related to Hurricanes Katrina and Rita No civil liability for death, injury, or damage to property as a result of activities operational or in the aftermath of hurricanes effective 6/15/06

R.S. 9:2800 H.(1)-(4) …Except for gross negligence or willful and wanton misconduct, no person shall have a cause of action based solely upon liability imposed under Civil code Art. 2317 & 2317.1 against a public entity for any damages arising from hurricanes Katrina or Rita, including aftereffects… Retroactive to August 26, 2005 Expire on August 30, 2008 This amendment was passed in the 2006 Legislative session.

Immunity of state related to Hurricanes Katrina and Rita R.S. 9:2800.17 effective June 15, 2006 Operational decisions or activities after Katrina and Rita not civilly liable for death, injury to person or damage to property Except for gross negligence or willful misconduct

Immunity of local school district R.S. 9:2800.17 also includes immunity of local school districts affected by Hurricanes Katrina and Rita for causes of action for damages for failure to warn, notify, remediate, clean-up or repair in decisions or operations after the hurricanes. The State of Louisiana took over the responsibility for a number of schools in New Orleans under the Recovery School District and may have responsibility for some schools in Baton Rouge in the near future.

What if Lawsuit names a State Employee as a Defendant? The lawsuit may allege negligence and or wrongdoing against you personally or in the scope of your job duties.

Louisiana Governmental Claims Act R.S. 13:5101 et seq. states this applies to any suit in contract or for injury to person or property against the state, a state agency, an officer or employee of the state or a state agency arising out of the discharge of his official duties or within the course and scope of his employment… This statute will protect you when you are doing your job

EMPLOYEE COVERAGE R.S.13:5108.1 Indemnification of officers and employees of the state; civil rights; representation by the Attorney General. ORM is the insurer. State employee is the insured. DOJ is defense counsel.

Who is Covered? R.S.13:5108.1(e) 1. An official, officer, or employee holding office or employment: Executive branch Legislative branch State Supreme Court, courts of appeal, family, juvenile or judicial district courts Deep-water ports

Request Representation by Attorney General Send a letter to our new Attorney General, James D. “Buddy” Caldwell requesting representation and defense along with the lawsuit.

YOU MUST: Send a cover letter to Attorney General requesting representation Send a copy of the petition Provide information regarding service of the petition Within 10 days of date of service of petition

Our Duty to Defend: The state shall defend and indemnify a covered individual against any claim, demand, suit, complaint or petition seeking damages filed in any court over alleged negligence or other act by the individual, including any demand under any federal statute when the act that forms the basis of the cause of action took place while the individual was engaged in the performance of the duties of the individual’s office or employment with the state.

FY07 CGL Claims by Cause Struck by or against 361 Professional Liability 255 Civil Rights 245 Struck by debris 206 Failure to provide care/protection 202 Fall/Slip 111

Hurricane Katrina Claims 287 claims in CGL 15 different agencies named 12 Class Actions requested

Hurricane Rita 5 claims

General Liability 2003 9,295,662 2004 8,873,754 2005 9,491,293 2006 14,528,311 2007 4,189,104.85

CLOSED CLAIMS

Performance Overview General Liability New claims:941 Closed: 839 Paid claims:$2,895,831.91 Pending: 2,149

New Claim How you can help ORM

High Exposure Potential Claim Serious injury Death Fire Explosion Major private property damage

Immediate Notification Call ORM Contact Send Email Send Facsimile

Frequently Asked Questions ???

Trip and Falls Take pictures of area of fall. Note whether claimant was wearing glasses, carrying things, type of shoes worn. Provide witness information. Boyle Decision LSU

Falls that Involve a Chair If chair broke, remove it from service, save it and label it with name of person who fell and date of incident. Note the manufacturer and supplier of chair. Take pictures. Provide witness names.

Loss of personal property Must determine care, custody and control. If property was left behind and then discovered to be lost, it would be abandonment on the part of the owner, not negligence on the part of the state.

Damage to Private Cars By Falling tree branches? Depends on whether it was live or visibly dead. Need photos. Gate arm? If it malfunctioned. Vandalism by unknown person? No. Our mower? Yes if the auto is insured. Need proof of liability insurance required by LA Law. Da

Theft or Burglary of Privately Owned Auto The state is not liable for theft or burglary of a privately owned automobile on its premises.

Do We Cover Injuries or Damages Caused by Wildlife? Vehicle traveling on state highway hits a deer Visitor to state park receives insect bite/snake bite

Reporting CGL Claims In writing to: Frank Foret or Kathleen Gasser Office of Risk Management P. O. Box 91106 Baton Rouge, LA 70821-9106 If loss is serious in nature, also telephone it in to (225) 219-0168.

Preserve Evidence Tag and label damaged items, do not discard Photographs with date, claimant name and photographer’s name Diagrams, measurements Witness names and contact information

What to say to claimant You will report the incident to your insurer, ORM. Do not promise that claim will be paid. Do not send anyone to a doctor or promise to cover medical bills. Coverage of the claim and liability issues are determined by ORM.

QUESTIONS

KATHLEEN GASSER CLAIMS MANAGER Office of Risk Management MEDICAL MALPRACTICE KATHLEEN GASSER CLAIMS MANAGER Office of Risk Management

How about those TIGERS! I love this photo of Mike meeting Mike. I look forward to meeting each of you during and after our presentations.

Medical Malpractice Team SUSAN COUVILLION, 225-342-8432 Nancy Daigle Sandy Pittman Percy Williams Dr. Roy Lee, Medical Director

Medical Malpractice Team ANNE WHITTINGHILL 225-342-0868 Sylvia Clower Pam Deslatte Jim Richard April Williams

WHAT DO WE COVER? Medical Malpractice insurance coverage is extended to state health care professionals providing health care services on behalf of the State. Includes medical, surgical, dental or nursing treatment of patients.

HURRICANE KATRINA KATRINA RELATED MEDICAL MALPRACTICE CLAIMS: 19 MCLNO 17 UNIVERSITY 1 LSUMC 1

Medical Malpractice Statute The State of Louisiana provides Medical Malpractice coverage in accordance with the provisions of R.S. 40: 1299.39

What is Malpractice? The failure to exercise the reasonable standard of care specified and required in the provision of health care, when such failure proximately causes injury to a patient.

Standard of Reasonable Care The standard of reasonable care for licensed physicians and dentists shall be the same as that required to be proven with respect to them under R.S.9:2794… Knowledge or skill or degree of care ordinarily exercised

Breach of Standard of Care Plaintiff must prove negligence Injury alone does not raise a presumption of negligence Plaintiff must prove proximate cause of each injury

Medical Review Panel Composed of three medical providers of the same specialty as named defendant Plus an attorney chairman selected by plaintiff and defendant counsel. The attorney chairman supervises the activities and deadlines for the panel

Panel Decision Evidence is submitted by plaintiff and defendants in writing. Panel has the sole duty to express its expert opinion as to whether or not the evidence supports the conclusion that the defendant(s) acted or failed to act with the appropriate standards of care as charged in the complaint.

No court action until a decision is reached by the Medical Review Panel.

MEDICAL MALPRACTICE TOTAL PAID

MM CLOSED CLAIMS

FY07 MM Claims by Cause Surgery related 260 Treatment related 215 Diagnosis 143 Obstetrics 89 Medication 43 Nursing related 36 Informed Consent 13 Fall related 12 IV and Blood 9 Anesthesia 8 Miscellaneous 6 Biomed Eq./Prothesis 6 Contributing Factors 3

Comparison To Last Year New claims are down from 224 to 200, an 8% decrease.