September 10, 2003
RECENT STATE MEDICAL MALPRACTICE ACTIONS
By: Saul Spigel, Chief Analyst
SUMMARY
According to the Health Insurance Association of America,
41 state legislatures debated medical malpractice reform in
their 2003 sessions, but only 11 passed legislation (and Missouri's
legislation was vetoed). Seven of those included caps on noneconomic
damages. According to the National Governor's Association,
in addition to caps, states considered shortening their statute
of limitations to file suit, reducing frivolous suits by requiring
mediation and pretrial screening, better medical error reporting,
and more stringent doctor discipline. This report describes
the legislation enacted and signed in nine states and bills
passed in Nevada's current special session on malpractice
but not yet signed by the governor.
On the federal level, President Bush's proposal for a $ 250,000
national cap on noneconomic damages has stalled in Congress.
The National Conference of State Legislatures resolved at
its 2003 annual meeting to oppose a national cap on the grounds
that it would usurp state authority.
NONECONOMIC DAMAGE CAPS
Seven states adopted caps on noneconomic damages, that is
compensation for pain, suffering, physical disfigurement,
and other nonpecuniary damages that are not compensable as
medical expenses or lost earnings. Table 1 describes their
provisions.
| State |
Damages
Provisions |
| Colorado
H. B. 1007 |
Extends pre-existing $ 250,000
cap on noneconomic damages for medical malpractice
to cases of physical impairment and disfigurement.
|
| Florida
S. B. 2-D |
Noneconomic damages for medical
negligence capped at $ 500,000 for physicians and
$ 750,000 for hospitals. In emergency room cases,
the limit is $ 150,000 each. For nonemergencies, the
cap is $ 500,000 for each physician, with an aggregate
cap of $ 1 million for all claimants. For hospitals,
HMOs, hospice providers, and other nonphysician providers,
the cap is $ 750,000 per claimant, with $ 1. 5 million
aggregate cap for all claimants. A cap may be raised
in nonemergency situations to the equivalent aggregate
amount for death, permanent vegetative state, or other
catastrophic injury where a judge determines it would
be unjust not to exceed the cap. |
| Idaho
H. B. 92 |
Caps noneconomic damages
awards in civil cases at $ 250,000 (down from previous
limit of $ 400,000), adjustable each year in accordance
with rise or fall of state "average annual wage. " |
| Ohio
S. 281 |
Noneconomic damages capped
at $ 250,000 or 3 times economic loss to a maximum
of $ 350,000/plaintiff or $ 500,000/occurrence; exceptions
to noneconomic caps are permanent and substantial
physical deformity, loss of limb or bodily function,
permanent physical functional injury limiting activities
of daily living; exceptions allow awards up to $ 500,000
plaintiff or $ 1,000,000/occurrence. |
| Oklahoma
S. B. 629 |
Noneconomic damages capped
at $ 300,000 in cases involving pregnancy. |
| Texas
H. B. 4 |
Comprehensive tort reform
legislation established a tree-tiered system for awarding
noneconomic damages in medical malpractice cases.
A $ 250,000 cap applies to all doctors involved in
a case, with a $ 250,000 cap against any single institution
and a $ 500,000 cap on all health-care institutions
combined. |
| West Virginia
H. B. 2122 |
Maximum award for noneconomic
loss of $ 250,000 per occurrence; $ 500,000 per occurrence
for wrongful death, permanent and substantial deformity,
loss of limb or bodily function; after January 1,
2004, will increase to account for inflation up to
50 percent, the maximum thereafter with be $ 1 million.
|
Sources: National Conference of State Legislature (April
2003) and BNA reports.
OTHER TORT REFORM MEASURES
Arkansas
Arkansas passed legislation requiring clear and convincing
evidence before punitive damages (i. e. , damages awarded
to punish the individual responsible for the injury) can be
recovered and limits them to the greater of $ 250,00 or three
times the compensatory damages (i. e. , those directly related
to the injury), up to $ 1 million. It made each defendant's
liability for punitive damages several only and not joint,
with the percentage of fault based on all parties who contributed
to the alleged harm regardless of whether they were party
to the suit (HB 1038). (In joint liability, each party is
potentially responsible for all damages; where liability is
several, a party is responsible only for the portion of damages
attributable to it.)
Delaware
Delaware's legislation requires malpractice suits be accompanied
by an affidavit of merit from an expert witness stating that
there are reasonable grounds to believe negligence occurred
(HB 310).
Florida
In addition to its cap on noneconomic damages (see Table
1), Florida's comprehensive medical malpractice bill, which
was enacted after a lengthy and contentious special session,
contains a variety of other reform measures. These include:
1. freezing malpractice premiums through December 31, 2003
and requiring insurers to reduce rates retroactively based
on state estimates of how much the new law will save them;
2. requiring hospitals and doctors to tell patients when
they are injured, although courts cannot consider these statements
as admissions of liability and plaintiffs could not introduce
them as evidence;
3. requiring hospitals and surgical centers to adopt patient
safety plans and appoint patient safety committees and officers;
4. allowing insurers seven months to study malpractice suits
and offer settlements;
5. allowing doctors to sue insurers for "bad faith"
acts when courts issue large damage awards against them and
their insurers failed to offer settlements;
6. requiring the state to suspend the license of practitioners
who do not pay damage awards within 30 days; and
7. requiring insurers, doctors, and hospitals to provide
the state with more information on premium rates, medical
errors, and malpractice suits (SB 2-D).
Idaho
In addition to reducing its cap on noneconomic damages (see
Table 1), Idaho limited punitive damage awards to the greater
of $ 250,00 or three times the compensatory damages award
(HB 92).
Nevada
The Nevada legislature is currently in special session to
address medical malpractice issues. It has enacted legislation
to protect physicians when malpractice insurers decide to
leave the market by requiring such insurers to inform the
state 120 days before they withdraw. In addition, the state
insurance commissioner could require an additional 60 days
in cases where affected physicians would not have access to
other malpractice coverage (AB 320).
Legislators also enacted a bill that prohibits insurers from
increasing malpractice premium rates because of investment
losses (SB 122).
New Hampshire
Recent legislation prevents malpractice lawsuits filed based
on the "loss of opportunity" for an improved life.
The bill reverses a 2001 state Supreme Court decision that
expanded the rights of plaintiffs to sue for damages, but
it does not prohibit lawsuits against physicians for negligence
that "proximately caused the ultimate harm" (SB
119).
Ohio
In addition to caps on noneconomic damages (see Table 1),
legislation enacted in January 2003 contained a collateral
source rule provision that allows a defendant to introduce
evidence of any amount payable as a benefit to the plaintiff
as a result of damages that result from injury, death, or
loss to person or property subject to the claim. If the evidence
is introduced, the plaintiff may introduce evidence of any
amount they have paid or contributed to secure the rights
to receive benefits.
Other provisions in this new law allow a defendant to ask
the court to conduct a hearing on whether a reasonable good
faith basis exists for the claim made against him. If the
court finds no such basis, it will award the defendant all
court costs and reasonable attorney's fees he incurs.
If the agreed upon attorney's fees exceed the amount of damages
for noneconomic loss, the act makes them subject to probate
court approval. It also provides for periodic payments of
awards over $ 50,000 (SB 281).
Oklahoma
In addition to capping noneconomic damages (see Table 1),
Oklahoma reduced the amount of prejudgment interest allowed
in medical and nursing home liability cases. It eliminated
the award of plaintiff attorney's fees in nursing home cases
and required dismissing medical and nursing home suits if
the defendants were not served papers within 180 days of the
suit being filed (SB 629).
Texas
HB 4 amends Texas' medical liability laws concerning limits
on liability in malpractice cases (see Table 1); informed
consent; cases involving emergency care; litigation matters
such as expert reports, the structure of attorney's fees,
and filing deadlines; and recovery of medical expenses.
Informed Consent. The act creates a nine-member Texas Medical
Disclosure Panel consisting of lawyers and doctors that must
determine which risks related to medical care must be disclosed
and which procedures may be performed only after disclosing
the risks. It must establish a general disclosure form and
develop written materials for disclosing risks associated
with hysterectomies. Compliance or failure to comply with
the required disclosure is admissible into evidence and creates
a rebuttable presumption of either informed consent or lack
thereof. Failure to disclose may not be found negligent if
doing so would have been medically infeasible, such as in
an emergency.
Emergency Care. HB 4 repeals the immunity from liability
for emergency procedures performed by "good Samaritans"
and replaces that immunity with a standard of proof in such
cases. A claimant must prove that the treatment or lack of
treatment deviated, with willful or wanton negligence, from
the degree of care and skill that could be expected from an
ordinarily prudent physician in similar circumstances. This
provision does not apply to cases involving treatment after
the patient is stabilized or to remedy an emergency caused
by a provider.
Pretrial Matters. A claimant must provide written notice
of a claim at least 60 days before filing a suit and must
authorize in writing the disclosure of medical records. All
parties have access to the patient's medical records and standard
discovery interrogatories within 45 days of a request. Filers
of claims must submit only an expert report and no longer
must submit a cost bond. If a claimant fails to serve each
party an expert report and the expert's curriculum vitae within
180 days after filing the claim, the court must dismiss the
claim with prejudice and must order the claimant to pay the
defendant's attorney fees and court costs. The required expert
report may not be introduced into evidence or referred to
by either party in the course of the action, but any other
expert report may be introduced by either party. The bill
also establishes qualifications for expert witnesses testifying
in a claim.
Recovery. A court must order periodic payments, rather than
a lump-sum payment, at the request of either the defendant
or the plaintiff when an award is $ 100,000 or more. To be
allowed to make periodic payments, the defendant must show
financial responsibility in the form of an insurance policy,
bond, or other proof of ability to make full payment. If a
recipient of periodic payments dies, all payments except loss
of earnings cease and any remaining security is returned to
the defendant.
West Virginia
Legislators enacted a comprehensive new law (HB 2122) in
March 2003 that contains caps on noneconomic damages (see
Table 1) and other provisions. These other provisions include:
1. an annual tax credit equal to 21% percent of physicians'
adjusted medical liability insurance premiums;
2. collateral source reform, which requires a court to reduce
a plaintiff's award by the net amount he has received from
other sources;
3. a $ 500,000 cap on civil damages for injuries or deaths
resulting from emergency care in designated trauma centers;
4. requirements concerning expert witnesses' knowledge, professional
activity, and licensure;
5. a requirement for claimants to notify the defendants at
least 30 days before filing a suit and provide a certificate
of merit from an expert health care provider;
6. the creation of a new physicians' mutual insurance company
to replace the current Board of Risk and Insurance Management
plan (all licensed physicians had to pay a one-time fee of
$ 1,000 to support the new company); and
7. the creation of a board to study whether to establish
a patient compensation fund and how to fund it (HB 2122).
Article from: Government Sources - National
Conference of State Legislature (April 2003) and BNA reports.
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