CRO Forum – October 2015 15
concentration is a key consideration in the management of classic clash losses, and geographic
information portals and maps can help ensure accumulation risk is properly reviewed.
The medical malpractice crisis in France
A recurring pattern in casualty insurance is that key legal decisions change the risk landscape, and
often come in times of economic stress. For victims, liability insurance could be a potential source
of revenue as the state legislates in favour of consumer rights in response to a particular situation,
and at the expense of insurance companies.
The French medical malpractice market was historically written on occurrence triggers with
unlimited coverage. In the early 2000s, this business was unprofitable and a landmark judgment
passed in November 2000 by the Cours de Cassation in plenary session, called "arrêt Perruche",
threatened to make medical malpractice uninsurable. The High Court awarded damages to a 19-year
old teenager born severely disabled because his condition had not been properly diagnosed prior to
birth. Payment for prejudice to be born disabled was thus acknowledged.
The whole market was hit by the decision and medical malpractice cover suddenly became very
expensive, if at all available. Insurers with high concentration in medical malpractice faced difficult
times and a series of reserve increases to cope with the new jurisprudence. To solve insurability
problems and to ensure cover was available, at the end of 2002 the French government introduced
several measures (laws called “Kouchner” and “About”), including establishing legal minimum
limits of insurance cover for practitioners, and a move to a claims-made trigger. Finally, pools
(Groupement Temporaire d'Assurance Médicale, GTAM, for insurance and Groupement Temporaire
de REassurance Médicale, GTREM, for reinsurance) were created to share the most delicate and
exposed risks. Since then obstetricians, anaesthetists and surgeons, those practitioners most
exposed, are required by law to be insured. Premiums remain high, anything up to EUR 10mn, given
that damages awarded in medical malpractice claims are significant.
Economic, societal and legal environments
Claims inflation
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is one of the greatest risks for casualty insurers. Most re/insurers’ reserves assume
historical average inflation rates for the claims payments expected to be made in 10-, 20- or even 30
years or more into the future. Periods of high inflation, both medical and general, can have a direct
influence on claim outcomes. For example, the last period of prolonged high Consumer Price Index
(CPI) inflation in the US was from 1974 to 1982. Many factors, including the US legal environment,
influenced casualty incurred losses over that time period. However, in the late 1970s, there were
significant reserve movements across the industry in the US, which could be partially linked to high
CPI inflation.
Periods of high claims inflation (eg, medical, court rulings) can however also be disconnected from
CPI inflation, making future insurance claims even more difficult to predict. For example, in France
CPI inflation decreased over the period of 2002 to 2008 yet claims inflation for insurers was
increasing significantly due to favourable court rulings for victims in bodily injury cases. More
recently, most developed markets have gone through a period of low CPI inflation. However, cases
of claims inflation can still be observed, for example driven by increasing bodily injury costs. The
potential remains for a spike in costs that would cause accumulation of casualty reserve increases
across the industry and globally.
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Claims inflation is not necessarily closely linked to widely published inflation indices like the CPI. Indeed, inflation of
liabilities is often more strongly impacted by legal, social, medical and fiscal changes, and portfolio effects than by pure CPI
inflation.