Alaska Medical Malpractice Insurance Primer

Medical Malpractice Insurance Basics

• 2 companies comprise 83% of the market.
• Another 18-25 make up the other 17%.
• Approximately 242 physicians per 100,000 people.
• Number of Physicians: Approximately 1,650.

Tort Reform

An initial cap on non-economic damages was put in place in Alaska via the Tort Reform Act of 1997. Under that rule the maximum amount of non-economic damages that could be awarded was the greater of $400,000 or $8,000 multiplied by the claimant’s number of years of life expectancy, except in cases of severe disfigurement or impairment. In those cases the cap was $1,000,000 or $25,000 multiplied by the claimant’s number of years of life expectancy. That statute was revised in 2005, reducing the caps to $250,000 or $400,000 in the case of wrongful death or disablement greater than 70%.

While Alaska does not require arbitration the state does respect arbitration agreements between healthcare providers and patients provided they are composed in accordance with state law (§09.55.535)

In cases where arbitration is not pursued the court may appoint a three person advisory panel to determine the following:

1. Why did the claimant seek medical care?
2. Was a correct diagnosis made? If not, what was incorrect about the diagnosis?
3. Was the treatment or lack of treatment appropriate? If not, what was inappropriate about the treatment or lack of treatment?
4. Was the claimant injured during the course of evaluation or treatment or by failure to diagnose or treat?
5. If the answer to question 4 is “yes,” what is the nature and extent of the medical injury?
6. What specifically caused the medical injury?
7. Was the medical injury caused by unskillful care? Explain.
8. If a medical injury had not occurred, what would have been the likely outcome of the medical case?

The written report of the advisory panel may then be used as expert testimony.

Finally, while not exactly a reform—the law has been on the books since statehood in 1900—Alaska is unusual in that it has an across the board loser pays rule, meaning that the prevailing party in a lawsuit has at least a substantial portion of his or her attorney and legal fees paid by their opponent. Most see this as useful in discouraging frivolous or meritless lawsuits generally, including in the realm of malpractice.

“Portage Lake” by Frank K. from Anchorage, Alaska, USA – Stitched shot looking across Portage Lake. Licensed under CC BY 2.0 via Wikimedia Commons.

Statute of Limitations

Alaska has a basic two year statute of limitations from the time of the incident. Like most states, there are exceptions for malpractice that is not immediately discoverable (ex. foreign object left in the body), minor children, and claimants who are mentally incompetent. In those cases the two year statute of limitations begins when the alleged malpractice is discovered or reasonably should be, when the minor turns 18 or marries, or when the person regains mental competency. There is a statute of repose that places an absolute limit of 10 years on all cases.

Summary of the Alaska Medical Malpractice Insurance Market

The Alaska medical malpractice insurance market is quite stable. While much of the market is dominated by two major providers there are a number of other players competing. Further, rates have been very stable for the past decade, and particularly since the 2005 legislation that lowered damage caps. In fact, Emergency Physicians Monthly recently listed Alaska as having one of the best liability environments in the country.

With a solid system for assessing cases, reasonable damage caps, and a loser pays system that discourages frivolous lawsuits, it’s no surprise that Alaska is a safe and stable environment for doctors to practice in nor that the number of doctors choosing to do so has been rising steadily there since 2006.

Resources

• Alaska Division of Insurance
• Alaska State Medical Association (ASMA)
• Alaska State Hospital and Nursing Home Association (ASHNHA)
• Alaska Medical Group Management Association (AKMGMA)
• Memorandum on the Impacts of Alaska Medical Malpractice Reform (PDF)