STATE LEGISLATIVE UPDATE

This may be my last monthly update as I have left the employ of the AAOS, but I will be doing some contract work until a new Legislative Analyst is hired. I have enjoyed preparing these monthly updates for the last four years and hope that the readers found them interesting and useful.

For a toolkit on medical liability reform visit www.pactproject.org.

As of the end of the month, the following state legislatures were in regular session: MA, MI, NJ, NY, OH and PA. In August the legislature in CA adjourned. Through August there have been 118,225 bills introduced in the states in 2004 and 24,231 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 Susan Koshy a call at 800-346-2267.

TORT REFORM

Legislation was signed by the Governor in North Carolina that provides that "statements by a health care provider apologizing for an adverse outcome in medical treatment, offers to undertake corrective or remedial treatment or actions, and gratuitous acts to assist affected persons shall not be admissible to prove negligence or culpable conduct by the health care provider."

This type of legislation has also recently been enacted in Ohio, Oregon and Colorado.

Physicians in Nevada successfully fought off attempts to have their medical liability reform initiative thrown off the November ballot. The trial lawyers have two initiatives on the ballot as well to eliminate caps on damages.

Physicians in Washington launched a campaign to gather enough signatures to get a medical liability reform initiative on the ballot in 2005 that will cap non-economic damages at $350,000. For the last two years "cap" legislation has passed in the Senate, only to die in the House of Representatives. The physicians need to collect 197,734 valid signatures. If the legislature adopted the language in the initiative next year it would not go on the ballot. The initiative would also limit attorney fees and shorten the statute of limitations.

Maryland Governor Bob Ehrlich spent a lot of time in August touring hospitals to talk about his plan for medical liability reform. He is trying to raise the public visibility of the issue and motivate physicians to contact their legislators. The Senate President, who has opposed reforms in the past, has called for a special session to look at one possible solution The campaign to pass the constitutional amendment to allow the legislature to enact a cap on non-economic damages is underway in Wyoming. The amendment needs to get a majority of all people going to the polls, not just a majority of all people voting on that issue. So a non-vote equals a no vote.

Doctors, lawyers and insurers in Vermont began discussions that could last eighteen months about how to address the medical liability crisis in that state. A seven-member panel of medical-industry experts, lawyers and insurance officials has been given until January 2006 to report to the legislature.

PROMPT PAYMENT www.pactproject.org Legislation has passed both houses in California that allows physicians to sue payers for violations of the Prompt Pay Act. Before a suit can be brought the physician must exhaust all contractual and administrative remedies available to him or her.

OSTEOPOROSIS

Illinois Governor Rod Blagojevich signed into law a bill that mandates insurance coverage for medically necessary bone mass measurements and also mandates that the diagnosis and treatment of osteoporosis be covered on the same terms and conditions that are generally applicable to coverage for other medical conditions.

No other osteoporosis legislation has passed in 2004.

PRACTICE MANAGEMENT

Following a highly publicized battle in California where a hospital tried to forbid its duly elected medical staff President from serving because he has a financial interest in a competing facility (the physician is an orthopaedic surgeon) the legislature passed a bill delineating the rights of a medical staff.

A medical staff has the right of self-governance that includes establishing criteria and standards for medical staff membership and the power to enforce such criteria. A medical staff can establish, in medical staff bylaws, rules, or regulations, clinical criteria and standards to oversee and manage quality assurance, utilization review, and other medical staff activities. A medical staff can select and remove medical staff officers. The medical staff can also assess and utilize staff dues.

The hospital shall not unreasonably withhold approval of changes to the medical staff bylaws, rules and regulations. If there is a dispute the medical staff and the hospital governing board must meet and confer in good faith to resolve the dispute.

The United States Court of Appeal ruled that a class action was appropriate in the lawsuit brought by 600,000 doctors alleging that six insurers (WellPoint Health Networks, UnitedHealth Group, Prudential Insurance, PacifiCare Health Systems, Health Net and Humana) violated the federal Racketeering Influenced and Corrupt Organizations Act by routinely reducing reimbursement to physicians.