Tag Archives: Cost Savings

Part 2 on Leadership: Developing a Strategic Transformation Team

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Different from the crowdBreaking the Linear Approach by Leading Strategic Transformation

In my last post, Leadership: The Change Process In Claims Requires A Different Approach, I put forth the position that changing a claims organization needs a new brand of leadership skill that does not usually exist in the traditional claims organization. Continuing with this theme, I will address what it means to break from existing management process to achieve effective strategic results.

Breaking from the linear approach to management is the key to leading Strategic Transformation. A standard organization will have a head of claims and then a variety of department heads to manage each line of business. Depending on the company there may be additional senior managers to handle various operational aspects of the group, which may include support staff, call center, technology and data analytics. Under this method, projects get initiated and managed within the same linear organizational framework. The result of this approach is a development process built in a silo that limits input and understanding of possible interdependencies that may exist outside the framework.

A Strategic Transformation Team, however, is formed with a center to lead change over multiple projects. Each project team consists of people from a variety of departments and levels. The teams are charged with creating objectives, setting priorities, securing buy-in, and executing on the vision. The teams are not formed within a linear framework and can draw upon different expertise to get the project completed. The Strategic Team in the center can drive all projects, manage interdependencies, and facilitate moving projects forward without distraction from the day-to-day management. Their focus is on the bigger picture and not limited within an individual project silo.

The Best Transformation Happens When Dedicated Transformation Teams Are Formed

To make effective change rapidly, it’s best to create a dedicated team to deal with change as their sole mission. This team will have the principal objective of producing outcomes and will be dedicated to adopting and improving the organization on an ongoing basis and not as part of some once every five year strategic plan. The independent team will also have multiple benefits which would include:

  • A central pressing vision to produce valuable effective change
  • Being focused on the big, as well as little pictures
  • Rapid deployment capability to get things moved to implementation
  • The ability to challenge the status quo to break conventional methods of project deployment
  • Expanded institutional knowledge about multi-disciplinary impacts to improve team efficiency on future projects

While building such a team internally is possible, there has to be an initial effort on getting commitment and focus from the staff to work in a new framework that is different from their existing work environment. For this reason, it is often best to bring in a third party to help facilitate the process.

How a Strategic Transformation Team Works

Getting from point A to point B requires a methodical approach to projects. The Strategic Transformation team will typically establish a Project Management Office (“PMO”) to help to successfully execute those projects identified “as needed to improve the operation.” The areas of responsibility under a PMO include:

  • Project identification and defining project purpose and requirements
  • Organization and management of work resources to execute projects and requirements
  • Assuring timely and useable deliverables
  • Coordinating multiple projects and dependencies
  • Reporting to key stakeholders and organizational communication

With a PMO established, projects can be outlined and staged appropriately to both manage costs and deal with interconnecting parts. Additionally a PMO can facilitate the gradual introduction of new processes and technologies which might otherwise disrupt the existing environment. This will allow an organization to phase in procedural changes in a manner to help gain cultural “acceptance” and “buy in” from employees.

The main team will go through a series of steps following established project management techniques to define, plan and execute on multiple strategic concerns simultaneously. The overall focus will be developed; and for each project, a similar multistep approach will be used and address the following.

  • Business champion/leadership assignment
  • Prioritization of project within scope of organizational needs, other projects and budget
  • Strong objectives established
  • Well defined project charters drafted and approved
  • Interdependencies/relationships explored and managed
  • Develop a risk analysis
  • Rapid and timely implementation
  • Buy-in and adaptation to change addressed with staff and stakeholders
  • Conclusion and re-explore

Achieving strategic transformation is possible with the right teams in place. Regardless, sometimes those efforts still hit road blocks.  In my next post I will discuss how assistance from thrid parties with transformation experience can help to expedite the process or, at the very least, provide a second set of eyes to oversee the work being done.

 How successful has your transformation team been?

 

 

Leadership: The Change Process In Claims Requires A Different Approach

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SuccessMeaningful and Successful Improvements to Claim Departments Require a Different Approach to the Management of the Change Process

Successful organizations are always changing and adopting to improve their operations, lower costs and increase efficiencies. Claims departments are no different and have been under pressure to transform their operations and live by the mantra of doing more with less.  Good claims organizations continuously evolve and adapt to ensure they add value to the overall business. Regardless, changing to meet the challenges of the marketplace is often fraught with problems and difficulties.  Many initiatives fail to get off the ground or fail in the implementation process. Change can be very successful and if managed and led correctly.  To change effectively there must be a strategic approach and a change in how these initiatives are led.

Why is claims transformation so difficult?

One reason claims transformation is so difficult is that claims departments are generally linear organizations. The claims value chain, or the process of moving a claim from first notice to resolution, is always looked at in a straight line. A claim comes in, is evaluated, reserved, and then resolved.  Of course there are many steps in between depending on the claim, but generally all claims follow a similar pattern from beginning to end.  Claims departments are often structured in a linear pattern as well. From intake units, to claims handlers, adjusters, managers, and operations – the claim moves through the organization in a linear pattern. Claim managers know this pattern and manage it well. However successful transformation does not follow a linear path. As such, many claims managers fail to have the transformational leadership skills needed to move projects to a successful outcome.

Change Leadership is Different Than Management

Management of the claims process is not the same as providing leadership to change processes and the culture that has been entrenched to those processes. Leading change is very different than managing change. Management guru and Harvard Business School Professor Dr. John P. Kotter puts is best when he said that:

[m]anagement makes a system work. It helps you do what you know how to do. Leadership builds systems or transforms old ones. It takes you into territory that is new and less well known, or even completely unknown to you.

Although most claim managers are well suited to managing core business functions such as staffing, claim volumes, customer satisfaction, budgets, day-to-day process and other operational and technical aspects of running a claims department, they often lack the skills necessary for effectively managing strategic change initiatives. In order to successfully lead change, a strategic vision and a specific program for management of a series of transformational projects to support those visionary objectives needs to be developed. Taking short-term approaches to individual tactical solutions will not create the strategic outcome needed to transform the organization successfully. Achieving this type of Strategic Transformation requires a new paradigm and skillset to deal with managing multiple interconnecting projects.

Another reason transformation is so difficult is that in response to problems, claims executives will initiate a variety of complex transformation projects to improve operations based upon the same linear task based approach to their day-to-day management. Claims executives use this linear approach to identify problems, conceive and implement solutions, manage expectations and results all within an enterprise environment where multiple interdependencies and stakeholder interests may impact outcomes.

Transformation Requires a Different Appraoach

Despite good intentions to improve operations many initiatives become ad-hoc responses to an immediate problem rather than a holistic solution to operational ills. This reactive focus means that projects will often get initiated in a vacuum, not managed fully, delayed or simply never implemented. To transform organizations, and achieve Total Outcome Management, executives need to adopt a proactive holistic Strategic Transformation approach to changing the organization for the better.

How Should Organizations Approach Change?

Insanity: Claim’s Departments Can’t Expect Different Results Without Changing Their Organizations

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Why do we keep traveling in circles?

Maybe I care too much about our industry or am just frustrated by the lack of attention to quality claims handling, but this is annoying. Why should claims make up half of the most frequent market conduct issues for the Property & Casualty industry as listed by Wolters Kluwer for the 5th straight year? As part of their review they track and analyze the results from state market conduct examinations. As with their prior studies, claims issues continue to dominate the list of state concerns.

In the 2010 incarnation, claims departments are being exposed to market conduct fines for:

  1. Failure to properly acknowledge, investigate, pay or deny claims within specified time frames
  2. Failure to provide required disclosures in the claims process
  3. Improper documentation of claim files
  4. Failure to process total loss claims properly
  5. Failure to pay the appropriate claim amount
  6. Failure to respond to the department of insurance and/or produce records requested during the exam process

I went back over the last 5 years of this study and the same issues keep coming up.  Figure 1 charts all the issues and how many times they showed up on the study.  These findings can be prevented with some focus on identifying issues and working to correct the problems.

Figure 1 * Five Year Market Conduct Claims Issues

For the individual result, see years 2006, 2007, 2008 and 2009

It’s time to raise the game!

Why are the same things coming up as issues year after year? We are now in an era of useful technology that should give companies an advanced look into their operations. Through oversight and a quality review program, claims departments are truly in the best position to prevent many of the issues raised on the top ten list. So whys has nothing changed?

I am sure every company is different and there are a lot of reason, but I feel there has been less and less attention to internal claim reviews and audits.  When times are tight operations are thinned and doing an internal claim review is considered a luxury.  Claim departments need to get back to preventing issues before they occur as the consequences for not doing it will result in increased claim costs.

So how does a claims department put themselves back on track? Here are a few suggestions:

Create standards: I know people are reluctant to create claim manuals for a variety of reasons, but there have to be some best practices in place that can be measured. Best practice documents can be drafted appropriately to minimize the risks of them being take out of context in a law suit. (Also if you are concerned, see our prior post of 7 Consideration When Drafting Claims Guidelines). Setting the standards and having staff work to those standards is a good starting place to ensure consistent results.

Audit for compliance: You can’t just sit there and expect everything will be fine you must review the work and ensure compliance. Audits are sometimes looked at with disdain, but when managed correctly they are a wonderful tool for training and improving the operation. Don’t just audit the old way, but instead collect data with a tool like The Audit Portal and understand where the breakdowns are (see Claim Reviews Empower Better Decisions By Putting Critical Information In Hand). From there you can truly assess how to correct the problem.

Fix and track problems: Getting all the information collected nice and neatly is a good start but now you have to improve on what was learned. Gather the information and look for trends and attack the problems. Is there a systemic problem or was it isolated? Can it be fixed with training or is there a technology solution that needs to be addressed? Analyze the issue and then develop a game plan for correcting the problem.  Then – re-audit.

As a claims community we can do better. Let’s start a quality campaign to get claims issues off this list!  Send this along to others in the industry and let’s start a trend.

2 Approaches To Early Resolution And Cost Savings For Litigation Guidelines

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Let’s State The Obvious: Early Mediation Can Lead to Lower Costs of Defense

Most insurance and claims adjusting companies have Defense Counsel Guidelines.  I’ve seen many of them.  It’s hard to remember, though, seeing one in which a contingency plan for early settlement was addressed.

Most guidelines I’ve seen are focused on having a case evaluated for settlement at 6 months.  By that time, your defense counsel will have interviewed the client, propounded initial discovery, received and reviewed the medical records and taken the plaintiff(s)’ deposition(s).

Perhaps you could reduce your ALAE significantly by including early mediation in your guidelines. (Transparency caveat:  I’m a mediator and I have a bias.  I mediate cases nationwide.)

2 Ways To Include Mediation In Attorney Guidelines

Here are two suggestions.  One is fast-tracking that process to 3 months.  The second is requiring your lawyer to approach plaintiff’s counsel about mediation within the first 6 months.

  • Fast tracking settlement.  In three months, it’s unlikely you’ll be able to get all of the medical records and receive responses to discovery and take the plaintiff’s deposition.  Ask yourself, though, if you really need all of that information to settle the case.  In some cases, particularly cases of clear liability, the answer is:  probably not.  Yes, you may settle some cases for a little more than having all of the usual discovery would suggest.  On the other hand, plaintiff’s counsel may be willing to take less money in return for not having to work the case up.  You will also be saving attorneys’ fees and litigation costs and closing files.
  • Mediation date within 6 months. There seems to be an institutional bias against the defense being the first side to suggest a mediation.  The underlying fear is that plaintiff or her counsel will conclude your case is weak and their settlement aspirations will zoom skyward and their bargaining posture will harden.  Do you have any data to support that bias?  I haven’t seen any.  Try it out, then calculate your overall savings.

I applaud all sides when they come to me to mediate a case either pre-suit or very early on in the litigation.  I try to set the expectation that the exploration of settlement at an early stage is an opportunity for both sides to be realistic, not only about the value of the case, but also about saving litigation costs.

Getting Creative And Reducing Claim Costs Without Sacrificing Quality – Part II

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Building blocks on which to create a new foundation to improve processes

Last month, I discussed the building blocks needed to reduce claim and litigation costs, while still maintaining a strong focus on quality. Those building blocks included:

  • collecting current data about your claims and litigation
  • evaluating the claim and litigation work itself
  • settling on a carrier claim and litigation handling philosophy

These building blocks create a foundation on which to build new processes and procedures that will reduce your claim and litigation costs, and maybe even decrease you volume as well. I refer this building process as looking at What I Have, What I Want, and What I See.

What I Have – All This Data

The data you collected regarding the current state of your claims and litigation is an excellent starting point. Examine your data and identify the areas that you wish to improve.

For a couple of reasons, while the amount of your legal spend may a visible target for improvement, don’t spend too much time on rate-issues first.  This is because the impact of improved processes and procedures will likely decrease total spend naturally, without having to address rate issues. Focus instead on issues like overall litigated volume (the number of pending litigated claims), cycle time (the average amount of time litigated claims take to close from inception), severity (of your pending litigated claims), and other factors. Developing processes and procedures that improve these other factors is a good starting point.

What I Want – Creating The Benchmark

Look again at your non-dollar data. Think about what you believe those numbers should reflect. For instance, if the average time it takes a litigated claim to go from inception to closure is two years (730 days), you know that, on average, you will be paying panel counsel for two years to bring that matter to a close. Based on your knowledge and you your industry contacts, determine whether this number appears high. Do this for other non-dollar metrics that you have measured.

Look at each area you wish to improve and consider a practical benchmark and goal you would like to achieve. My advice is to not set arbitrary goals, as they bear no particular relation to what you will be able to achieve, and thus set your organization up for disappointment or worse. Instead, work with stakeholders in the process and think about how your metrics work together to form a complete picture.

Set incremental measurement points. Hypothetically, you may be starting with a two year cycle time and wish to set a benchmark objective of reducing that by six months, followed by a long-term goal of reducing it to one year. Again, always make sure that your objectives align with the other information you are obtaining. Do your objectives make sense in light of the jurisdiction, the severity of the portfolio, the type of case, and the claims handling philosophy of your organization?

You may have a very diverse book of cases and wish to develop benchmarks and goals first by line of business, or by stakeholder. In fact, when you start objectively considering all of the factors involved, you may end up with benchmarks and goals that look something like this:

  • Overall Litigated Claim Pend Time – Current Average: 730 days
  • Motor Vehicle Accident (simple): 550 days (benchmark); 365 days  (goal)
  • Product Liability 700 days (benchmark); 650 days (goal)
  • XYZ Claim Professional 680 days (benchmark) ; 600 days (goal)

These numbers are purely arbitrary for the sake of example, but they are illustrative of processes you may wish to consider when examining your current situation and deciding how you’d like them to look in the future.

What I See – You Have To Look At What Is There

A continual focus on quality is critical. Higher-quality claim and litigated file management results not only in lower indemnity payments, but in decreased costs as well. As someone who has managed thousands of files with bad faith allegations, there is nothing more expensive than trying to successfully litigate a poor quality claim file.

One of the core building blocks of the process are evaluations – evaluations of all professionals involved in your litigation life-cycle, from claims professionals to attorneys. In looking at those evaluations (whether through internal or external audit), identify those practices that need to stop and those that are more likely to extend the cycle-time of your cases.

A simple example — in reviewing a number of litigated claims last year, I noticed a consistent pattern of defense counsel granting numerous extensions to opposing counsel to respond to written discovery. These numerous extensions were causing files to last for months with no activity (other than counsel billing for those activities associated with granting the extension). During my review, I made note of such patterns and then developed ways of addressing them through new procedures and processes. In addition, I also considered what I discovered in these evaluations and my solutions for addressing these issues in my benchmarking and goal-setting.

In the next and final part of this series, I will explore the nuts and bolts of the procedures, processes and guidelines that can be used when moving forward with a revamp of your litigation management system.

6 Steps To Reduce Expenses For Medical Experts As Suggested By The Expert

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If you send it all, they will bill for reviewing it all

Lowering expert costs are simple if you just send only the information needed

I have been a medical expert for both the plaintiff and the defense for more than 40 years in various states.  I am amazed at the volume of unnecessary medical records and other material sent to experts for review.  Once I receive them I have to spend numerous hours, at considerable expense to lawyers and insurance carriers, wading through pages of irrelevant information and quite often duplicates of material.

How can this be avoided?  How can this unnecessary expense be reduced?  How can this process be streamlined and made more efficient?  The following are some suggestions:

  1. The lawyer or insurance carrier is aware of the plaintiff’s complaints and should restrict material initially sent to the expert to the time frame of the alleged malpractice event.  This may consist of anything from one page, when an incorrect dose or procedure was the cause of the malpractice suit, or a longer time frame if that is warranted, or to the particular admission in which the malpractice event took place.
  2. The lawyer should send the pertinent pages of the medical record on the event with necessary back-up material, e.g., pertinent laboratory, radiological or pathological reports, or pertinent focused nursing notes or flow sheets.
  3. All other material, e.g., medical records of previous unrelated admissions and duplicative or irrelevant information should be culled from the record and not sent to the expert. The appropriate culling of the record can be done by trained para-legal personnel at considerable less expense compared to this being done by the medical expert.  This will expedite the process and be more cost-effective.
  4. The medical expert should then request focused information to conclude his evaluation and report.
  5. If the case is to be settled (and I believe that 90% of them are) then this is all that should be required.
  6. Should the case go to trial, and should it be necessary, additional records can be sent to the medical expert for review in preparation for trial.

Editors Comment:

The costs to defend malpractice has been rising for years (see my post – Medical Malpractice Report Shows Increased Severity Despite Lower Frequency) and this is really a practical idea to help lower those costs. Once an expert receives the entire file they will be obligated to review the material. This suggestion need not be limited to just medical experts and can be used in a variety of cases where experts are retained. Experts are an expensive, necessary, part of the process, and looking for new ways to lower those costs are a good thing.

Any other suggestions for lowering expert costs?

Cutting Costs Without Overloading The Claims Handler – Part 2 Of The Series

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Trying To Save Money But Can’t Figure Out Which Road To Take?

Last week I offered the first of two solutions to reduce costs in key claims cost cutting areas when hiring full time staff is not an option. As I noted in the post, 2 Cost-Cutting Solutions To Get Work Done Without Overloading Claims Handlers, overworking claims handlers with additional tasks not part of their core job function – to evaluate and settle claims – can result in some aspect of their job suffering. Key cost cutting initiatives, such as Anti-Fraud and subrogation recovery, get put aside by the handler and never get the fullest attention needed to be successful.

Having achieved improved results in my prior life, I suggested both outsourcing and hiring a dedicated part-time employee to handle certain tasks. The first example I presented centered on having an outsourced vendor put a resource “on-site” for improved results. In the context of an Anti-Fraud solution, having the vendor “on-site” resulted in more fraud reports to the states, improved claim handling through knowledge transfer, and lower costs. The program was a success.

This example tackles a similar problem of trying to improve results without the need to hire a full time employee in the area of litigation management bill review.

Claim Handlers Really Don’t Do A Good Job Of Cutting Legal Bills – A Part Time Hire Solves The Problem

Conventional wisdom has been that claim handlers are in the best position to review legal bills on the claim files they work on. The reality is legal bill review, for most claim handlers, is a dreaded task considered a necessary evil.  In addition, I find that some claim handlers rarely cut inappropriate charges because they develop a working relationship with the attorney and do not want to hamper that relationship for what are felt to be minor issues.  However, when the bill review process is separated from the claims handler, many of these concerns or conflicts go away. Handlers can focus on managing claims and developing open working relationships with counsel and billing issues can be addressed by others.

Possible Solutions

In looking for a proper solution I considered vendors that review legal bills as well as bill review software.  Legal billing vendors that provide the service usually get paid based upon the amount of money they save. This type of review can create problems and can sometimes be perceived as a conflict.  I was not trying to create an adversarial relationship with counsel, so this idea was put aside. Bill review software provides an excellent job of catching billing discrepancies that frankly can’t be caught manually. Unfortunately, billing software requires a larger capital investment, IT involvement, and time to implement. While the projects often pay for themselves through reduced legal fees, at the time, it was not a road that I was able to follow. What I needed was an attorney who understood the legal process and could work with, and speak with, counsel on billing issues. As I was working in a claims organization that hired many lawyer/claim handlers it seemed like a natural solution.

How To Make It Work

While I did not want to hire a full time attorney, I was approached by someone who knew a stay-at-home attorney looking to work 20 hours a week in a flexible environment. Being able to provide that kind of work load is sometimes not possible for many companies, however, given what I was looking for, the solution to my problem seemed to have found me. At the time, the company I worked for had an excellent claims system (since I helped design it I was always going to say this) which made it easy to set up a part time employee remotely. A new process was designed to allow claim handlers to send our litigation bill reviewer invoices for compliance analysis and review.  At first it was decided to limit reviews to invoices with known issues and ones over a certain dollar amount. Bills could be forwarded electronically, reviewed, analyzed and returned to the handler with suggested changes. A form letter was instituted where disputed charges were listed and explained. The new program was in place and it worked.

In the first year the program reviewed over $15 million of legal invoices. On average, legals bills were reduced by 10% with most of the reductions due to billing errors, duplications and failing to comply with agreed upon rates. The most fascinating findings came when we opened the services to Third Party Administrators doing work on the company’s behalf. It turns out that bill review reductions were 2-3% higher for work being done for the TPA than for work being done for in-house claim handlers. No matter what the reason, the bottom line was over $1.4 million dollars saved in the first year alone.

Lessons Learned

  • Claim handlers, despite being close to the claims process, were not in the best position to review legal bills
  • Attorney’s seem to be a little more cautious reviewing their billing submitted to the company directly than when submitted to the TPA
  • A small amount of diligence can result in huge savings – these savings add up and were clearly worth the small investment to retain a part-time employee

The solutions I offer here, and the prior post, are not limited to world of SIU and litigation bill review. Hiring a part-time employee, or “on-site” vendor,  to manage any initiative is a great idea when specialized knowledge is an appropriate way to get better results and the need for a full time employee is not needed. As noted, subrogation and salvage recovery are great areas that can also benefit from these types of programs.

I have just offered up two solutions to the age-old problem of trying to do less with more. While the solutions are not new, sometimes to become more effective you need proper execution and new ways to look at old problems.

2 Cost-Cutting Solutions To Get Work Done Without Overloading Claims Handlers

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Too Many Tasks, And Hiring New Staff Is Not An Option? (Part One of Two)

Not every company can afford to hire dedicated teams to focus on cost-saving initiatives such as subrogation or Anti-Fraud. Sometimes there is simply not enough work to justify a full-time position internally. Regardless, failing to focus on cost-saving programs can increase loss and expense payments.

So how do most companies handle the situation? By adding those tasks to a claims handler’s already overloaded job function. The problem is, the more tasks they are asked to do, the less they can focus on being a good claims handler.  The usual result of overloading the claims handler is that they not only can’t focus on the core aspects of their job – to evaluate and settle claims – but they also can’t properly attend to the additional work. Both jobs end up suffering.

Tasks such as subrogation and legal bill review are the last things claims handlers want to do. Furthermore, these tasks are better performed by dedicated staff. Take a look at any department with dedicated subrogation specialists and you will see higher rates of recovery than those without. This is also true in the areas of Anti-Fraud and litigation review. So how can a claim department maximize results and lower costs, while also ensuring claim handlers can continue to focus on their core job functions? From my own experience, two recommended practical solutions to consider are outsourcing with on-site vendors, and hiring part-time employees.

Taking a page from my past, this post presents the first of two solutions that I implemented to secure successful results.

Outsourcing As A Solution – An Anti-Fraud SIU Example

Outsourcing certain aspects of the claims department can make good economic sense.  However, not every company needs a 30-person call center, nor do they need to invest the resources to build one. In those instances, partnering with a vendor can be an ideal way to provide the best of the best. One of the potential problems, however, is if your company has only a limited need, the vendor may not always give you the most attention. Additionally, completely outsourcing the task means that claims handlers lose the benefits of the expertise that the vendor provides, and often may not even be aware of the available services offered. I was faced with this very issue when dealing with managing an Anti-Fraud unit. My solution was to require the vendor to have their employee “on-site” in our office.

What Did Not Work

Looking for fraud is a key part of a claims handler’s job, and many states require fraud reporting to state investigators. The company I was working for had a substantial commercial casualty book, as well as other specialty lines of coverage. There was not quite enough work to justify a dedicated Special Investigation Unit, but still the work needed to be done. I decided to outsource the process to a Third Party Administrator who had an active SIU unit. The vendor was contracted to handle all the company’s SIU state reporting requirements as well provide any investigation services that our internal claim handlers needed. In addition they were to provide required Anti-Fraud training to our team, and perform audits of our claim handling TPA’s for compliance with Anti-Fraud reporting requirements.

The vendor provided Anti-Fraud training to the team at the onset of the relationship, and then visited the office from time to time to provide updated training and answer questions. After a year of working with this vendor, we discovered that fraud referrals to the state were no different than before the vendor was hired. In discussing the issue with the claims handlers I learned that, despite initial training, the interaction with the vendor was typically reactive, and there was minimal regular contact with investigators. As a result handlers were not aware of the vendor’s range of services, nor did they even know how to properly identify Anti-Fraud red flags. The process and the program weren’t working and I had to make a change.

How To Make It Work

I began to look for a new vendor who would provide a solution that would produce better results.  I determined that the only way I was going to get more fraud referrals was to have someone sitting in the office on the front lines with the claims handler. For the new contract, I found a vendor that would assign a dedicated SIU investigator to sit in our office several days a week. With the investigator on-site, I was able to produce a more proactive approach to looking for potential fraud. Because they were on-site, the vendor was able to use our claims system to review files and actively monitor claims for potential fraud. This was not possible with our previous vendor in an an off-site reactive model.

Once the new program started the difference was almost instantaneous. Claim handlers sought out advice about claims with possible fraud. Investigations increased and claim handlers became more proficient at identifying industry red flags. SIU state referrals increased over 200%, and due to new investigations, several files were able to have indemnity reductions. Handlers learned that sometimes something may not be an outright fraud but instead were exaggerated claims. With the assistance of the “on-site” investigator, handlers learned new ways to analyze damages and reduce loss costs. The program was a success.

Lessons Learned

Changing the way a vendor works with your company can have dramatic results. In this particular initiative I was able to learn:

  • If it’s broken, then fix it. Don’t worry about changing your approach; it’s sometimes the best thing. Too often, leaving a merely adequate solution in place is worse than starting over to make improvements.
  • Be persistent in thinking outside the box in an effort to find new ways to approach basic solutions.
  • Having your vendors work on-site with your team can have many advantages, including the “absorption” effect. Your vendors’ expertise, knowledge, and skills are transferred to your internal staff.

In Part 2, I will give an example of using a part-time attorney to review legal bills as a way to lower your legal expense dollars.

The 5 Essential Components of Defense Attorney Reports That Can Improve Claims Costs and Outcomes

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Why Are Attorney Evaluation Reports Sometimes So Light?

I was recently conducting an audit of claim files and had the opportunity to review a significant number of Attorney Evaluation reports from a variety of law firms. Like many other things in life, some were better than others.  What seemed to be most glaringly consistent was the inability of counsel to truly provide an assessment of exposure and what the case is worth.

When asked to assess exposure, the typical response was to state that the insured had a 50% chance of winning the case. While I would agree that there are instances when this may actually be the case, often times it’s not. One report I read stated that the attorney felt the case was probably defensible, but with additional information they may not be able to defend the case. Why is it so difficult for some attorneys to give a comprehensive assessment? Is there a fear that if an attorney says one thing, they can’t change their mind later? When circumstances change, new information is developed, or issues are uncovered, it is perfectly reasonable that evaluations need to be adjusted accordingly.

I would submit that an experienced defense attorney, that has seen hundreds of similar cases, has a pretty good idea of what the issues are in a case. Claim handlers can, and should, expect their defense counsel to clearly evaluate liability and damages and express those evaluations coherently in their reports. Counsel should be providing full evaluations at least every six months or after significant changes in discovery.

At the very least, attorney evaluations need to provide the following 5 components in their reports:

  • Introduction – All reports should start with a few sentences outlining the facts of the claim, and should not require reading though 8 pages to find out what the case is about. An example of a concise introduction would be “This case is about the alleged wrongful death of a 29 year old stockbroker, father of three children, after he was struck by our insured’s vehicle being driven by an intoxicated driver.” In fact, that type of introduction can be used in every letter sent by defense counsel regarding the case.
  • Factual Summary – A summary is a summary (I know – never define a word with the same word – but it seems appropriate here). When line-by-line details are relevant, then they should be spelled out. Otherwise, a concise assessment of important facts, and how they impact the case, is all that is needed to explain all aspects of the file. Counsel should also describe pertinent testimony, how it impacts liability or damages, and state how the witness would present to a jury at trial.
  • Liability Assessment – An evaluation of liability needs to address all the parties in the case and not just the insured. Each of the plaintiff’s allegations should be discussed, and how the defense will be able to respond. Sometimes a defense would not serve to completely negate liability, but only serve as a way to reduce liability or damages. If this is the case it should be clearly stated so a proper assessment can be made.  An example of a concise statement on liability would be “I believe the insured has problems with liability as they were aware the driver sometimes drank at lunch to “calm his nerves.” While the 29 year old decedent was speeding, and may have ran a stop sign, it may only serve to mitigate a small apportionment of liability.” Another valuable tool is to list out all the defendants and show each of their percentages of fault.
  • Damages – This really should be the easiest section of the report to write up. A simple list of all the economic damages followed by ranges for potential non-economic recovery would clearly spell out the total extent of possible exposure. Additional information that could affect the outcome can also be clearly stated like this example: “Despite being unemployed, the decedent taught Sunday school and took care of his sick wife while raising his two small children on his own.” A great suggestion from a colleague is for counsel to base their report on the particular jury charge that would apply in the case. Verdict research is also helpful and readily available. In the end, counsel should come up with a damage assessment of the full value of the case and then factor in the liability apportionment.
  • Conclusions and Recommendations – Attorneys are being paid for their opinions and expertise, and they should be providing that experience in their reports. A clear statement should sum up counsel’s position on the case, and the relevant next steps.  Upcoming discovery expenses, as well as any out-of-the-ordinary expenses that may be incurred (i.e. investigators, experts, trial exhibits, etc.) should be listed to allow the claim handler to manage expense budgets better.

Good Reports Are Cost Effective and Allow Handlers to Make Informed Decisions

When reports include all of the potentially relevant and appropriate information, a claim handler can make a more informed decision. Reserves can be assessed and changed when needed, and expenses can be managed more effectively. I was able to see this in practice at another client I recently worked with. This client worked proactively and diligently with counsel to get them to follow the structure I outline above. The client’s Director of Claims told me that they “are paying for [counsel’s] evaluation, and wanted them to put their neck out.” He went on to say that they truly partner with their attorneys and acknowledge that they “win together and lose together.”  It was clear from reading these reports that counsel enjoyed writing them, and according to the client, also enjoyed the challenge of providing a complete evaluation.

A good report will tell the story of the entire case in a concise and comprehensive manner. Defense counsel and claims professionals need to work together to help resolve the claim using the most expeditious and appropriate approach. Good reporting will help the process. Sit down with counsel and come up with a format that works for everyone. Don’t be afraid to send a report back to counsel and ask them to state their position so a proper evaluation can be made.

What are your experiences with counsel reporting? How do you think the evaluation process can be improved?

Saying “I’m Sorry” Can Reduce Exposure to New Claims

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It may seem counter intuitive, but with the right technique a heartfelt apology can help lower claims costs and exposures

There is a wave of civility sweeping through the world of risk management as a way to lower exposure and reduce costs: Apologize. Maybe mom was right when she stood there and said “now say you’re sorry.” In fact, there are some very impressive statistics in the area of medical malpractice around the simple use of an apology.

For example, as Peter Bregman wrote in his article in the Harvard Business Review, I want you to apologize, “When the University of Michigan Health System experimented with full disclosure, existing claims and lawsuits dropped from 262 in 2001 to 83 in 2007.” Now those are numbers to pay attention to.

The Movement to Apologize

Increasingly there is a view that making an apology can significantly lower the risk of lawsuits. Admitting fault and making an effort to fairly resolve the damages can greatly reduce indemnity payments and significantly lower claim expenses. In Canada they actually legislated it under the Apology Act of 2009 which allows communication of sorrow or regret without worrying that the comments can later be used adversely in a civil court. See Dan Pinnigton’s The Apology Act 2009: Sorry is no longer the hardest word to say.

Using techniques to foster an appropriate apology have been shown to lower costs. Hospital customer service groups are teaming with Risk Management to help reduce lawsuits as recently discussed in the Everest Best Practice’s Blog post – Healthcare Risk Management and Patient Relations Collaborate to Reduce Litigation. In fact, an entire organization, Sorry Works, was formed in 2005 to help businesses shift the view that making an apology after a bad event will increase lawsuits. After an experience of medical malpractice, Doug Wojcieszak, founded the company to counsel companies on how to effectively apologize.

3 Steps to Disclosure

Sorry Works advocates a program that is predicated on a three-step disclosure process:

Step 1 – Initial Disclosure – is all about empathy and re-establishing trust and communication with customer in the immediate aftermath of an adverse event. Executives say “sorry” but fault is NOT prematurely admitted or assigned. Also, do NOT become defensive. Executives take care of the immediate needs of the customer (phone calls, transportation, food, etc) and promise a swift and thorough investigation. The goal is to make sure the customer never feels abandoned. In the spirit of good customer service, pull the customer closer to your company or organization.

Step 2 – Investigation – is about learning the truth. Was a mistake/error made, or not? They recommend involving outside experts and moving swiftly so the customer doesn’t suspect a cover-up. Stay in close contact with the customer throughout the process.

Step 3 – Resolution – is about sharing the results of the investigation with the customer, and their legal counsel. If there was a mistake, apologize, admit fault, explain what happened and how it will be prevented in the future, and discuss fair, upfront compensation for the injury or death. If there was no mistake, continue to empathize (“we are sorry this happened”), share the results of investigation (hand over charts and records to customer and their legal counsel), and prove your innocence. However, no settlement will be offered and any lawsuit will be contested.

The Art of Saying Sorry While Protecting Rights

Kevin Quinley suggests proper ways to apologize in Can Saying “I’m Sorry” Manage Risks?

  • Start with, “I’m very sorry that this has happened” Note: this does not acknowledge any negligence or liability.
  • Be concise. Do not go into detail or sound like you are making excuses.
  • Be prompt. Don’t delay. The quicker you can apologize and express regret for a situation, the better chance you have of nipping a potential claim in the bud.
  • Ask, “What can we do to make it right?” Use that as a starting point for negotiation.
  • If the other party is threatening to initiate litigation or you are concerned that litigation may be in the offing, do not send a written apology.
  • Even if the problem is not your fault, apologize for the situation and try to make amends. The determination to “be right” can get the best of many people and trigger costly claims. Even meritless claims may consume thousands of dollars in legal fees and hundreds of man-hours to defend.

    • Coverage Issues

    It is important to note that some cooperation clauses could negate coverage if an insured admits liability. Many policies contain the following cooperation language which might be triggered in the event an apology is looked at as and admission of liability:

    The Insured, except at his/her own cost and for his/her own account, shall not, without written consent of the Company, make any payment, admit any liability, settle any claim, assume any obligation or incur any expense. The Company shall have the right, but not duty, to appeal any judgment.

    Understanding language that might give rise to a coverage concern should be addressed prior to instituting any apology program. Effective collaboration between insured and insurer can help avoid policy issues before they occur.  (See the discussion in Does Medical Error Disclosure Violate the Medical Malpractice Insurance Cooperation Clause?).

    Some Additional Thoughts

    Even if an apology did not take place immediately after the incident, if the matter proceeds to litigation a mediation can also be an effective time to apologize. The general principal that things said at a mediation cannot be used at trial protects all from any statements which might be misconstrued or used against an insured at trial. When attending a mediation, make sure to choose the corporate representative who will apologize wisely. A flip apology from a person who is far removed from the event may do more harm than good.

    As Kevin Quinley stated so well:

    In the 1960s tearjerker movie and novel, “Love Story,” the tag-line was, “Love means never having to say you’re sorry.”

    That may be true in love but it may not be true in risk management. In certain circumstances and situations, apologies may be legitimate risk management tools not only to retain valued customers, but to forestall expensive and time-sucking litigation.

    Do you think that using an apology can reduce costs in every case? When might it be a problem?