STATE LEGISLATIVE UPDATE

AUGUST 2003 STATE LEGISLATIVE UPDATE

Oregon concluded their longest session ever on August 27th when a deadlock over how to solve the budget disaster was broken. Eighteen states have held special sessions this year, many to deal with issues surrounding the budget.

As of the end of the month, the following state legislatures were in regular session or in recess: CA, MA, MI, NJ, NY, OH, PA, and WI. The legislature in OR adjourned in August. Through August there have been 167,829 new bills introduced in the states and 38,561 have become law.

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

TORT REFORM

During their third special session to address the medical liability insurance crisis the Florida legislature finally passed a bill. The bill was negotiated before the session started by leaders of the House, the Senate and Governor's office. Governor Bush quickly signed the bill.

The bill limits each claimant to $500,000 in non-economic damages from all defendant physicians combined. The bill goes on to make clear that any one defendant physician will not be required to pay more than $500,000 in non-economic damages combined to all claimants in a suit. All the claimants combined can only recover $1,000,000 in non-economic damages from defendant physicians. There is also a second cap on non-economic damages for other defendants (hospitals, etc.) of $750,000 per claimant with a total cap for all claimants of $1,500,000.

Both of these caps can be increased ("pierced" in the legal parlance) in various ways. In cases of death or permanent vegetative state the cap rises to $1,000,000 for physicians and $1,500,000 for other defendants. If the court determines that a "manifest injustice" would occur if the cap is not raised and the lawsuit involves a "catastrophic injury" then the patient can recover up to $1,000,000 in non-economic damages from the defendant physicians and $1,500,000 from the other defendants. Catastrophic injury is defined as "severe paralysis of the arm, leg or trunk, amputations, severe brain injuries, severe burns, blindness and loss of reproductive organs."

The bill also creates a more stringent cap for care provided to emergency patients. Each claimant is limited to $150,000 in non-economic damages from physicians with all claimants limited to $300,000 total. The cap for non-physician defendants is $750,000/$1,500,000. The cap cannot be raised under any circumstances. The emergency cap applies to surgery that "is required as a result of the emergency within a reasonable time after the patient is stabilized, in which case the [cap] applies to any act or omission of providing medical care or treatment which occurs prior to the stabilization of the patient following the surgery."

The bill also amended the state's Good Samaritan law so that the immunity applies to actions taken due to EMTALA that are not done with "reckless disregard." Additionally, the law tightens the rules for who can serve as expert witnesses. Physicians must be in the same specialty as the defendant and during the prior three years they must have clinical, research or teaching experience. The physician who signs the affidavit of merit must be of the same specialty as the defendant and the affidavit is now discoverable. All medical liability suits must go through mandatory mediation within 120 days of the filing of the suit.

Medical liability insurance premiums are frozen at current levels while the state determines a "rate reduction factor." The state will attempt to estimate the savings that will accrue to insurers due to the reforms in the bill. On January 1, 2004 premiums must be reduced by the factor.

The bill also requires hospitals to establish patient safety plans and create patient safety committees. Physicians and hospitals must tell patients of adverse events (though this will not be considered an admission of liability).

A bill passed earlier in the year in Minnesota that eliminated joint and several liability for defendants found to be less than 50% at fault. Previously the threshold had been 15% at fault. A bill passes both houses in Oregon that lowers the post-judgment interest rate to 5% or the Fed discount rate plus 3%, whichever is lower.

PROMPT PAYMENT

The state of Maine required Anthem Blue Cross to pay $350,000 in fines for prompt pay violations and reimburse 387,000 providers $1,200,000 in interest that was not paid.

PRACTICE MANAGEMENT/REIMBURSEMENT

The Governor in North Carolina signed the bill to require insurers to disclose their fee schedule and claims submission and reimbursement policies to providers.

PATIENT SAFETY

A bill was signed by the Governor in Oregon to create the Oregon Patient Safety Commission. The Commission will "establish a confidential, voluntary serious adverse event reporting system to identify serious adverse events." They will also "establish quality improvement techniques to reduce systems' errors contributing to serious adverse events; and disseminate evidence-based prevention practices to improve patient outcomes."

WORKERS' COMPENSATION

After the Governor vetoed a similar bill earlier in the session the Oregon legislature passed legislation authorizing workers to choose nurse practitioners to treat them for 90 days under the workers' compensation program.

In California all the workers' compensation bills have been gutted and a conference committee is meeting to try and figure out how to cut billions of dollars from the $29 billion program. The conference committee is looking at creating a fee schedule for ambulatory surgical centers at 120% of Medicare, the creation of treatment guidelines and capping chiropractic visits. The state auditor released a scathing report about how the state has not done nearly enough to rein in medical costs that have risen over 250% in the last decade.