Office of Risk Management

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Office of Risk Management
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GENERAL LIABILITY CLAIMS

• KATHLEEN GASSER
• CLAIMS MANAGER
• OFFICE OF RISK MANAGEMENT

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Who We Are

• Ann Wax, State Risk Administrator-Claims
• Kathleen Gasser Claims Manager
• Frank Foret Claims Supervisor
• Susan West
• Claims Manager
• James Lea Claims Supervisor
  

• [phone]
• [phone]
• [phone]
• [phone]
• [phone]

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CGL ADJUSTERS

• 225-342-8512
• 225-342-8516
• 225-342-6214
• 225-342-8447
• 225-219-4428
• 318-262-2131

• PENNY BUCHANAN
• BARBARA BURNS
• JIMMY MARTIN
• BYNIE WELLS
• DIANE WILLIAMS
• TOM BLUFF

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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.

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General Liability Claims

• Claims alleging damages in tort due to negligence
  by the state of Louisiana.
• The CGL unit handles claims that are not Workers
  Comp, do not involve state owned automobiles, and
  do not involve damages attributed to the state
  highways.
• Claims range from trip and falls to property
  damage to wrongful acts, for example.

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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
• Publishers Media

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CIVIL RIGHTS CLAIMS

• Claims alleging discrimination, harassment and or
  retaliation are also covered. The General
  Liability unit handles these claims.

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Reporting CGL Claims

• In writing to
• General Liability Claims
• Office of Risk Management
• P. O. Box 91106
• Baton Rouge, LA 70821-9106
• If loss is serious in nature, also telephone it
  in to [phone].

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HOW TO REPORT A CLAIM

• For injuries sustained by visitors to your
  agency, have agency contact complete the CGL
  claim form found on our website
• www.doa.la.gov/orm

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ON LINE REPORTING

• CGL will be introducing On Line Reporting later
  this year. We plan to provide a Pilot Program
  with one or more agencies.
• Workers Compensation is using On Line Reporting
  now.

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When a Loss Occurs

• All Property which has been damaged is to be
  protected against further damage and is to be
  made available for inspection by a claims
  adjuster assigned by ORM.
• The agency is not to assume any obligation or
  incur any expenses without the authority of ORM.

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Where to send report of claim

• 1. Mail it to
• Frank Foret, Supervisor
• Office of Risk Management
• Post Office Box 91106
• Baton Rouge, LA 70821-9106
• 2. Fax it to
• Frank Foret, Supervisor
• [phone]

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How a claim is processed

• An Adjuster is assigned.

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CUSTOMER SERVICE

• One adjuster will handle CGL claims for the
  entire agency in order to provide more effective
  customer service.

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The adjusting process

• 1. Investigation
• 2. Evaluation
• 3. Negotiation
• 4. Settlement

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Investigation of Claim

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

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What is Our Negligence?
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Limitation of Liability for Public Entities

• R.S. 92800
• 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.

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Constructive Notice

• The existence of facts which infer actual
  knowledge
• Example
• Defective sidewalk in front of administrative
  building or
• Defective sidewalk somewhere in middle of campus
  where there are miles of sidewalk.

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Evaluation of the claim

• Do we have liability?
• Are we 100 at fault or was there comparative
  fault by the claimant or fault by another party?
• What damages were suffered
• Medicals
• Lost wages or lost time
• Out of pocket expenses
• Property damage

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Negotiation of Claim

• Claims may be filed Pro Se by the injured party
  or by an attorney.
• The adjuster will negotiate directly to settle a
  claim.
• When a lawsuit is filed, the adjuster will work
  with our defense counsel in negotiations.

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Settlement of a Claim

• The adjuster must have settlement authority in
  order to negotiate and settle a claim.
• Requests for settlement authority may be
  presented to supervisors or to Claims Council
  depending on the level of authority sought.
• A full and final release of all claims and a
  dismissal of any legal action are obtained in
  order to settle a claim.

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CGL FY2006 STATISTICS

• Pending as of 6/30/2006
• 1,155 GL
• 959 PI
• New claims
• 724 GL
• 245 PI
• Settlements/Judgments 86
• Paid 5,976,258.27

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Frequently Asked Questions

• ???

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Do we cover trip and falls?

• Were we negligent in maintaining a safe
  environment?
• Take pictures of area of fall.
• Note whether claimant was wearing glasses,
  carrying things, type of shoes worn.
• Provide witness information.

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How You Can Help

• Tell us about conditions that contributed to the
  accident
• Wet floor, any warning signs?
• Holes, barriers, irregular surface
• Lighting
• Weather
• Handicap
• Eyeglasses
• Carrying anything that might obstruct vision

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Take Photographs of the Scene

• Label with name of injured party and date
• Take some photos that show location and landmarks

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Falls that involve a chair?

• Only if the agency is negligent in maintaining a
  chair in a safe condition.
• 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

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Damage to private cars?

• 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.

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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, and it would not be negligence on
  the part of the state.

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Theft or Burglary of Privately Owned Auto Parked
on Agency Grounds.

• The state is not the insurer of a privately owned
  automobile. We act as the gratuitous depository
  only.

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Trip and Fall in Elevators

• We must determine the Maintenance Co. who
  services the elevator and review the contract.
• Check to see whether a malfunction has been
  previously reported to the Maintenance Co.

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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

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Lawsuits filed against your Agency

• Forward all lawsuits, demands, or legal documents
  pertaining to a claim to ORM immediately for
  further handling.

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What if Lawsuit names a State Employee as a
Defendant?
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Louisiana Governmental Claims Act

• R.S. 135101 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

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EMPLOYEE COVERAGE R.S.135108.1

• 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

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Named Defendant Must Request Representation by
Attorney General

• Send a copy of the petition
• Send a cover letter to Attorney General Charles
  C. Foti requesting representation
• Provide information regarding service of the
  petition
• Within 10 days of date of service of petition

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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 individuals office or employment
  with the state.

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Who is Covered?

• R.S.135108.1(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

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Claim, demand, suit, complaint or petition
seeking damages

• Remedy sought determines whether complaint with
  be handled by ORM.
• Suits seeking contractual damages or suits on
  open accounts are not handled by ORM.

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Limitations

• Suits against the state must be filed in
  Louisiana state courts
• Suits for personal injury to any one person total
  recoverable exclusive of property damages,
  medical care, loss of earnings, shall not exceed
  five hundred thousand dollars.

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Future Medical Care Fund

• In personal injury suits wherein the court awards
  medical care and benefits subsequent to judgment,
  this is paid according to R.S. 391533.2
• Medical care benefits are paid directly to
  providers as incurred.

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Civil Rights Lawsuits
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Employment Practice Liability

• Claims of Improper or Discriminatory
• -Hiring, Firing, Discipline
• -Compensation Classification
• -Treatment, Training, Opportunities
• -Terms and Conditions of Employment

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What is Title VII of the Civil Rights Act of
1964?

• It prohibits discrimination in employment of the
  basis of
• Race
• Sex
• National Origin
• Religion

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DiscriminationIs Illegal in the Following

• Hiring and Firing
• Compensation, assignment, or classification
• Recruitment, testing
• Use of facilities

• Training
• Benefits
• Pay, retirement plans
• Leave
• Other terms of employment

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To Prove Discrimination

• There must be an adverse employment action such
  as failure to hire, promote or termination.

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What is Title I of ADA?

• Americans with Disabilities Act prohibits
  discrimination in employment against a qualified
  individual with a disability because of the
  disability.
• It is unlawful to take retaliatory action against
  any individual for opposing unlawful practices or
  for filing a charge.

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What is the Age Discrimination in Employment Act?

• It prohibits discrimination in employment of the
  basis of age with respect to individuals who are
  40 years of age or older.

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Who Enforces these Acts?

• Equal Employment Opportunity Commission (EEOC)
• Employment Litigation Section, Civil Rights
  Division, U.S.Department of Justice enforces
  Title VII against state governments

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What Does EEOC Do?

• EEOC investigates claims of discrimination filed
  by employees.
• If there is reasonable cause to believe a
  violation of the law has occurred and
  conciliation efforts are unsuccessful then
• EEOC refers the charge to the U.S. Department of
  Justice to initiate litigation.
• Or issue a right to sue letter to complainant.

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Is There a Time Limit to File?

• Charges filed against the state must be filed
  within 300 days of the act of discrimination
• EEOC does their investigation
• After a Right to Sue letter is issued, there is
  an additional 90 days in which to file a lawsuit.

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Plaintiff Recovery Rates

• From a 30 million dollar verdict in one case
• A class action against Coca-Cola settled for
  192.5 million,
• Risk of high verdicts and class action decisions
  is obvious.
• EPL favorable verdicts were 50 in 1994.
• EPL Verdicts for plaintiff increased to 67 by
  2000.
• Research shows, however that 43.6 of favorable
  decisions for plaintiff were reversed upon
  appeal.

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Questions?
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MEDICAL MALPRACTICE

• KATHLEEN GASSER
• CLAIMS MANAGER
• Office of Risk Management

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WHO WE ARE

• Kathleen Gasser, Claims Manager Telephone (225)
  342-8433
• Susan Couvillion, Claims Supervisor Telephone
  [phone]
• Anne Whittinghill,Claims Supervisor Telephone
  [phone]

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Malpractice Adjusters

• Kate Albert
• Sylvia Clower
• Pam Deslatte
• Sandy Pittman
• Jim Richard
• Brenda Breeland
• Nancy Daigle
• Percy Williams

• [phone]
• [phone]
• [phone]
• [phone]
• [phone]
• [phone]
• [phone]
• [phone]

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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.

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Malpractice Statistics

• Pending claims approximately 1,129
• New claims received 2006 FY 238
• Paid 14,584,583.71 for 102 settlements/judgments
• Pending is down 140 cases

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HURRICANE KATRINA

• KATRINA RELATED MEDICAL MALPRACTICE CLAIMS 15
• MCLNO 13
• UNIVERSITY 1
• LSUMC 1

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Medical Malpractice Statute

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

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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.

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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.92794
• Knowledge or skill or degree of care ordinarily
  exercised

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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

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Who can file a claim?

• The patient
• Patients legal representative (attorney)
• Legal guardian/parent on behalf of minor patient
• Next of kin on behalf of deceased patient

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How to file a medical malpractice claim?

• A request for a Medical Review Panel must be
  forwarded to
• Commissioner of Administration
• Post Office Box 44336
• Baton Rouge, LA 70804-4436
• Filing fee 100 per named defendant

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Duty of the Commissioner

• Confirm receipt of the filing within 30 days
• Notify all named defendants
• Notify claimant and defendants of date of filing,
  and receipt of filing fee or
• receipt of affidavit of paupership

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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

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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.

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No court action until a decision is reached by
the Medical Review Panel.
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Filing a medical malpractice lawsuit

• The filing of a panel request suspends the time
  in which a suit must be instituted.
• This runs for 90 days after notice by certified
  mail of the panel decision.

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Questions?