Captives need to understand complex medmal causes

Medical-related captives are watching the rise in medical malpractice (medmal) incidents and prosecutions closely, and captive owners and operators need to understand the causes, a panel at the Cayman Captive Forum 2022 has heard.

The panel, which was composed of Drew Becker, senior vice president at AJ Gallagher, JD Chad Brouillard, partner at Foster & Eldridge and Kris Oliveira, clinical risk manager at AJ Gallagher, looked at the increasing number of prosecutions on medmal issues and why there is a public perception of medical criminality.

They discussed the difference between criminal negligence and civil negligence and highlighted key things delegates should watch out for. These included 5th Amendment issues in trials, full details of insurance coverage, due process, issue preclusion and post-Dobbs reproductive care.

The panel examined the complicated topic of when medical malpractice claims have criminal law implications especially involving patient deaths. An increase in cases is being driven by overzealous prosecutors taking medical malpractice claims as a basis for criminal negligence charges.

The presentation included a live mock deposition of a clinical defendant in a serious medical malpractice case involving the death of a patient.

It was pointed out that professional liability policies will respond to civil cases but criminal allegations will likely be uninsured. The panel stressed that it is important to talk to brokers and find out just what is covered in a policy and what isn’t.

Policy language is important, the panel concluded, as this is a complex issue that requires care in the changed post-COVID-19 world.