STATE LEGISLATIVE UPDATE

October, 2002 STATE LEGISLATIVE UPDATE

October is a stressful time for most state legislators, especially this year. Elections are just around the corner and many legislators have to run in districts where people are not familiar with them. The stakes are high this year as many of the state legislative chambers are closely divided and just a few wins or losses could switch party control. Currently Democrats control both chambers in 18 states while Republicans control both in 17 with the rest split. Of the 7,375 state legislators 51% are Democrats. The National Conference of State Legislatures states that in 25 states a switch of four or fewer seats could move control from one party to the other.

As of the end of the month, the following state legislatures were in regular session or in recess: MA, MI, NC, NJ, NY, OH, and PA. Through October there have been 99,363 new bills introduced in the states (this does not include carry-over bills from last year) and 27,552 have become law.

Some of the bills the Department of Health Policy is tracking are outlined below. If you have any questions please give Jay Fisher a call at 800-346-2267, x4336.

TORT REFORM

The Mississippi legislature finally agreed on a compromise medical liability insurance/tort reform package in October. The Governor quickly signed the bill into law. The law includes a $500,000 cap on non-economic damages. The cap will be increased to $750,000 in 2011 and $1,000,000 in 2017. The cap does not apply in cases of gross negligence or other times when punitive damages are applied.

The law also eliminates joint liability for non-economic damages. For economic damages, if the defendant is held less than 30% at fault then he or she must only pay for the percentage of economic damages attributed to their actions. In another important victory for physicians, the new law requires that all medical liability cases be filed in the county where the care was provided. The new law requires that plaintiffs afford defendants 60 days notice before suit can be brought. The filing must also include a certificate of merit.

A physicians group in Nevada, Keep Our Doctors in Nevada, claims that they have collected enough signatures to force the legislature to vote on their tort reform package in 2003. If the legislature rejects the proposal it would go on the ballot as a referendum in 2004. The physicians want to eliminate the exceptions to the $350,000 cap that the legislature enacted last month. They also want to limit attorneys' contingency fees. The physician group also commissioned a study that concluded that the legislative reforms that passed last month would not solve the liability insurance problem. The study noted that the non-economic damages cap has two exceptions that would lead to unpredictability in judgments.

There were multiple tort reform bills introduced in October in New Jersey. The bill that the physicians are pushing hardest provides for a 180-day notice to the physician before suit can be filed. The plaintiff must also file an affidavit of merit. The bill also toughens the standards for who may serve as an expert witness. All cases before being tried must go through a five-member mediation panel made up of two lawyers, two health care providers licensed by the same state board as the defendant, and one active or retired judge.

Noneconomic damages would be limited by the bill to $250,000, unless the plaintiff is "hemiplegic, paraplegic, or quadriplegic, the plaintiff has permanently impaired cognitive capacity rendering him incapable of independent daily living, or there has been a permanent loss of or damage to a reproductive organ resulting in the inability to procreate." In those cases the cap would be $500,000.

Legislation was signed into law in Pennsylvania changing the venue statute such that medical liability cases can only be brought in the county where the actions leading to the lawsuit occurred. A bill was also introduced in October to create a special court system in Pennsylvania that would only hear medical liability cases. Governor Perry has also floated this idea during the campaign this year in Texas.

"The Project on Medical Liability in Pennsylvania," a two-year research initiative funded by the Pew Charitable Trusts found that small business owners and the general population was concerned that the current liability market in Pennsylvania would drive up health care costs and result in less access to care.

The Governor of West Virginia is proposing lowering the premiums of physicians who are insured through the state below the current level available in the private market. This is because there are so few insurers that there is not a competitive market right now in the state.

More than 1,000 people rallied at the state capitol in Ohio pushing for passage of a tort reform bill. The Governor and U.S. Senator stated that the most important thing Ohioans could do to produce reform was elect Republicans to the Supreme Court. Doctors also rallied in Florida.

The 2002 premium study by the Medical Liability Monitor was released and showed that in most cases rates for the same specialty were lower in states with caps on non-economic damages than in those without caps.

WORKERS COMPENSATION

Legislation passed the Assembly in New Jersey that would raise the fees for physicians who provide evidence in workers compensation court cases. Under the bill the amount that a treating physician who testifies in court is paid increased to $300 per hour not to exceed $2,500. The treating physician can also be paid $450 for the preparation and submission of a report containing the entire record of treatment, medical history, opinions regarding diagnosis, prognosis, causal relationships between the treated condition and the claim, and the claimant's ability to return to work with or without restrictions, etc.

SCOPE OF PRACTICE

A bill to allow physical therapists to treat patients without a physician referral was introduced this month in New Jersey. The bill is similar to one that failed to pass last session.