CMS and COPIC celebrate 30-year partnership advocating for physicians and patients
by Alfred Gilchrist, CEO Colorado Medical Society
Featured in the January/February 2015 Colorado Medicine.
Born of a crisis, incubated by the Colorado Medical Society (CMS) and recognized today as a national leader in patient safety and risk management, COPIC is one of Colorado’s proudest health care achievements. The physician-governed organization was created to address the upward spiral on the cost of medical liability insurance that was adversely affecting access to care.
Not only did CMS found COPIC, but for the last three decades, the two separate organizations have also united on legislation, education and advocacy. At the same time, COPIC’s connection to CMS has helped the company craft patient safety programs that address on-the-ground realities for physicians.
“Our joint success is a recognition that patient safety, physician well-being and a stable liability climate are not at odds, but are part and parcel of a functioning health care system,” said CMS President Tamaan Osbourne-Roberts, MD. “All of these elements thrive when any one of them thrives.”
The early years
We must travel back a half-century to appreciate COPIC’s remarkable birth. In the 1960s, few physicians ever faced a malpractice suit. Internists paid just $100 a year for insurance. By the 1970s, medical malpractice claims in other states began to skyrocket. Premiums were climbing, and yet the number of national insurance companies doing business in Colorado had dropped to just a few. As early as 1976, CMS was called upon to examine how to protect Colorado physicians from the liability crisis.
By 1978, out-of-state insurance companies had a near-monopoly in Colorado. In an effort to tackle rapidly rising premiums, CMS formally requested that these companies cut expenses and return excess profits to physicians. The companies were not responsive. So on April 24, 1980, the CMS House of Delegates gave the CMS Board of Directors a mandate to develop a better malpractice insurance product for Colorado.
“The founding five doctors who created COPIC were all CMS presidents, former presidents or presidents-elect,” recalled George Dikeou, JD, former COPIC general counsel. “They came together and decided that insurance in Colorado ought to be provided by a physician-directed company that was more focused on protecting the practice of medicine and not so much interested in making a lot of money.”
In 1981, the CMS Professional Liability Trust opened its doors for business. Funded by a $50,000 loan from CMS and advance payments from future members, the Trust spent from 1980 to 1984 building the infrastructure to become a formal insurer. The Trust’s founders quickly realized that its success ultimately came down to the ability to manage risks inherent in the practice of medicine.
“Evidence-based, physician-to-physician prospective risk management was a real departure from the norm,” said former surgeon Bob Brittain, MD, COPIC’s first risk manager. “Insurance companies were more focused on containing losses or increasing premiums.”
COPIC established a risk management committee to review former malpractice claims. The committee learned that these cases hinged on poor communication, lack of consent and late documentation of notes. In 1983, Brittain began sharing risk management tips to physicians via Copiscope, COPIC’s newsletter, which is still a widely read publication to this day.
The Trust applied for a certificate of insurance, and on Sept. 19, 1984, COPIC Insurance Company was born.
On to tort reform
The creation of a physician-led insurance company was not enough to stop premiums from climbing. An increasing number of staggering jury awards forced premiums to more than double between 1984 and 1987.
A 1988 study by Ned Calonge, MD, showed that if left unchecked, the liability climate would force two-thirds of Colorado physicians who delivered babies to stop providing this service, potentially leaving 42 Colorado counties without coverage. Colorado legislators agreed that the need for tort reform was obvious.
The Health Care Availability Act (HCAA) took effect on July 1, 1988, establishing a $250,000 cap on non-economic damages and a $1 million soft cap on economic damages. The soft cap could be exceeded at a judge’s discretion.
As a result, the average paid indemnity claim dropped from $66,000 in 1988 to $29,000 in 1989. Medical malpractice insurance rates for about half of Colorado’s physicians dropped an average of 10 percent in 1989 and access to care was stabilized and enhanced.
Just as importantly, tort reform allowed COPIC to achieve a key aspect of its mission: to provide rate stability so as to be able to offer affordable coverage for Colorado physicians.
Maintaining a stable liability environment
Since passage of the HCAA in 1988, CMS and COPIC have worked tirelessly in two distinct areas: liability and sharing best practices to improve health care. CMS and COPIC worked with lawmakers and in the courts to preserve the stable medical liability environment, while educational and innovative programs enabled COPIC to broaden its ability to help physicians, hospitals, acute care facilities, and medical practices implement patient safety and risk management programs.
As a result of this work, HCAA has remained essentially unchanged for 30 years; however, CMS and COPIC faced – and fended off – several major challenges along the way. The first occurred when the HCAA’s constitutionality was tested before the Colorado Supreme Court in 1990.
In 1991, a trial judge reduced a medical malpractice jury award of $1.6 million to $1 million, as was appropriate under the HCAA. Plaintiff attorneys appealed the case to the state high court, arguing that the law violated equal protection and due process provisions of the U.S. Constitution. This moment was pivotal for the HCAA, putting it to the highest test of the land.
Fortunately, the high court rejected these arguments when determining that the non-economic damages cap neither violates the right to equal protection nor the right to due process. Since then, challenges to the HCAA mainly concerned attempts to raise the cap on non-economic damages.
Two Colorado Supreme Court decisions in 2001 and 2002 introduced uncertainty into award limits. These decisions forced COPIC to significantly raise premiums for a short period to cover potential future losses until the HCAA could again be preserved.
In one case, the high court held damages related to disfigurement were not subject to the cap. Because almost any medical liability claim could arguably create a disfigurement, this decision –known as the Dupont decision – undermined the HCAA. In the Russell decision, the Colorado Supreme Court held that a professional corporation, such as a medical practice, could be vicariously liable for the negligent acts of an employed physician.
COPIC could not directly challenge these decisions in court so the organization’s leaders set about to educate lawmakers as to the negative impact on health care. First, the CMS-COPIC legislative team assembled a broad coalition of partners such as the Association of Commerce and Industry, the National Federation of Independent Businesses and others. Then, the coalition persuaded Colorado lawmakers to propose legislation stating explicitly that damages for disfigurement in medical malpractice actions are considered non-economic damages and subject to the cap. HB 1007 emerged from committee with the recommendation that the cap be raised to $300,000, including disfigurement. The bill was signed into law in 2003.
Separately and concurrently, CMS, COPIC and their tort reform partners helped craft legislation clarifying that health care business entities were not liable for the negligent acts of physicians themselves. HB 1012 was signed into law that same year.
Just four years later, CMS and COPIC successfully advocated to exempt the HCAA from an attempt to authorize increases to the amount paid in a wrongful death settlement.
“Suddenly, if there’s no limit to what a wrongful death settlement is worth, it becomes impossible to price our insurance product and determine what it’s going to cost physicians,” explained COPIC Chairman and CEO Ted Clarke, MD. “It’s very important to have a set amount.”
The HCAA came under attack again in 2008 when two Colorado legislators championed Senate Bill 164. This legislation intended to raise the caps for non-economic damages in medical malpractice cases by inflation-adjusting the cap retroactively back to 1988, thereby raising the cap to $510,000. SB 164 also intended to allow awards to be doubled in extreme circumstances if a judge determined it was justified.
“As an unintended consequence, physicians would have been driven into buying much higher levels of medical liability coverage, immediately leading to an 18 percent increase in premiums,” said Clarke. “It was a major fight because the trial attorneys had the support of the Senate president and the governor.”
CMS, COPIC and every quarter of the health care community responded to SB 164 with reasoned, vocal, sustained and respectful opposition. More than 350 health care and business organizations, as well as seven newspapers, lent their voices against SB 164. Dozens of physicians called, wrote, emailed and visited their legislators. On April 30, 2008, the House Judiciary Committee voted to “postpone indefinitely” SB 164.
In recent years, COPIC and CMS have filed a number of “friend of the court” briefs at the Colorado Supreme Court in cases that support physicians’ ability to defend themselves in medical malpractice cases.
Just last year, the high court issued a ruling favorable to physicians that said it would allow the introduction of hearsay evidence to support alternative causes to negligence for plaintiff’s injuries. In other words, the testimony of friends and family can be used to offer an alternate explanation as to why a patient’s history or outcomes did not go as planned and to support a physician’s defense.
CMS and COPIC have also fought to maintain the sanctity and confidentiality of professional review for physicians. The high court recently ruled that professional review records couldn’t be subpoenaed and discoverable or admitted in a civil suit, protecting an important process that is critical to improving quality of care and enhancing patient safety.
Improving safety in the practice of medicine
COPIC and CMS have also worked in a coordinated fashion to improve the safety of physician practices. Following the pioneering work of risk manager Brittain, COPIC has invested heavily in physician education, communication-and-resolution programs, and initiatives to improve patient safety.
“What’s particularly unique about COPIC is really that emphasis on patient safety and safe care,” said Osbourne-Roberts. “If you look at the various activities COPIC is involved in, from physician education to its teaching of medical residents, to its nationally recognized programs, you see from top to bottom how patient-safety-oriented it is.”
COPIC’s general counsel Mark Fogg, JD, agreed. “To a large extent, COPIC is a vehicle for patient safety,” he said. “Our strongest defense for our doctors is preventing an adverse event from occurring in the first place, so we spend a lot of time on patient safety, risk management and regulatory reform.”
COPIC’s risk management team has continually reached out to physicians to instill principles of risk management. To support insureds, practice reviews became formally organized around specific “Level One Guidelines” in the 1990s to improve documentation, reduce system failure and prevent avoidable adverse outcomes. These “Practice Quality Reviews” are conducted every two years for any office-based practice. COPIC now performs more than 2,200 Practice Quality Reviews each year.
In the early 1990s, COPIC also began offering formal education programs to physicians. Course offerings have grown over the years to address medical management, technical issues, patient communication and documentation.
In 2013, COPIC conducted 373 in-person seminars with an attendance of 9,376 medical professionals, and more than 5,500 participants completed online courses available through its website. Some of the most popular courses deal with topics such as opioids and pain, principles of patient safety, closed claims, informed consent and liability aspects of EHRs. COPIC also offers an annual week-long orientation to medical residents and students, and other physicians-in-training.
COPIC has also sought to develop a communication-and-resolution program as an alternative to the costly, ineffective tort system. The organization launched one of the country’s first of these programs in 2000. COPIC’s 3Rs (Recognize, Respond and Resolve) Program addresses the physical, financial, and emotional needs of patients following an unexpected outcome. It also aims to keep the lines of communication between physicians and patients open.
Through this pioneering program, COPIC actively encourages the disclosure of unanticipated care outcomes to affected patients and their families. In return, patients receive timely reimbursement for their out-of-pocket medical expenses and extended recovery time. They retain the right to sue at all times.
As of June 2014, more than 5,200 COPIC-insured physicians were enrolled in the 3Rs Program, and approximately 2,100 Colorado patients have received reimbursement.
“We, along with the Colorado Medical Society, think that the current tort environment is ineffective and inefficient,” said Clarke. “Since COPIC’s mission is to improve medicine in the communities we serve, we are always looking for ways to make the practice of medicine safer. The 3Rs Program is an example of that.”
In recent years, CMS has emphasized the importance of ensuring physicians themselves are healthy. Studies show that just half of physicians feel capable of living a healthy lifestyle in terms of diet and exercise. Many studies correlate physician wellness with increased patient safety, so a finding that physicians are neglecting themselves is a concern for patients and for COPIC.
In partnership with the Behavioral Health and Wellness Program at the University of Colorado Anschutz Medical Campus, in 2014 CMS launched the “DIMENSIONS: Work and Well-being Toolkit for Physicians.” The toolkit both measures readiness for change and offers a variety of simple, protective practices that physicians can employ to combat burnout and flourish professionally and personally.
This is just another example of how by standing shoulder-to-shoulder, COPIC and CMS help Colorado physicians provide quality care to Colorado residents.
“The relationship between COPIC and CMS is a win-win,” said Clarke. “We are both in synch in making sure errors don’t happen and in providing better medicine in the communities we serve.”