STATE LEGISLATIVE UPDATE

As the year wound down news was still being made on the medical liability front. 2005 will also be a busy year for medical liability legislation in the states.

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

As of the end of December, the following state legislatures were in regular session or in recess: MA, MI, NJ, NY, and OH. Through December, 93,626 bills have been introduced in 2004 and 28,270 bills 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

During a special session at the end of December the Maryland General Assembly approved a medical liability insurance reform package that Gov. Bob Ehrlich said he would veto because it contains a tax on HMO premiums.

Ehrlich stated that the "net result of this exercise is a tax bill" which is unacceptable. He vowed to introduce a stronger bill, without the tax increase, in 2005.

The bill:

• Temporarily freezes the cap on non-economic damages at the current level of $650,000; it also reduces the cap in wrongful death cases from $1.6 million to $812,500.
• Allows a court to appoint a neutral expert to determine payments for future medical bills and lost wages.
• Sets stricter standards for doctors who testify as expert witnesses.
• Makes apologies or expressions of regret made by doctors to patients inadmissible in court, but admissions of fault would be allowed.
• Enacts a 2 percent tax on HMO premiums to fund a four year rate stabilization program that would limit rate increases to 5%.
• Increases reimbursement to physicians under Medicaid.

In Washington, a coalition of activists, labor leaders and lawyers have submitted petitions for an initiative to the legislature. Initiative 366 would ban secret settlements in medical liability cases and revoke the licenses of doctors who have three jury verdicts against them in 10 years for preventable medical injuries. The Washington state "Health Care Initiative" has also been submitted to the state legislature for consideration. About 315,000 signatures were collected in support of the petition, which would cap non-economic damage awards, limit attorney's fees, eliminate joint and several liability and permit periodic payments for damages awards of more than $50,000. The legislature can pass the measure, ignore it (which puts it on the November ballot) or place both the measure and a legislative alternative on the ballot.

A study by the Pew Charitable Trust's ongoing Project on Medical Liability in Pennsylvania finds that technology not only saves lives but also creates opportunities for errors in diagnosis and treatment and raises patient expectations regarding treatment outcomes. This opens physicians to greater liability exposure. The report includes several recommendations, including proper training for physicians, improved communications, an assessment process to help ensure patient safety, and a no-fault system in cases where the cause of an injury isn't entirely clear.

The Arizona Medical Association is raising funds to launch a campaign to ask voters to approve measures aimed at capping some lawsuit awards in medical liability cases. The association is also distributing red wristbands with the words "Will Care Be There?" to 12,000 medical and osteopathic doctors in the state.

Delaware's law requiring an "affidavit of merit" when a medical liability lawsuit is filed seems to be effective in reducing the number of frivolous suits filed, although some doctors believe it doesn't go far enough. Statewide, just 28 lawsuits were filed during the first five months of this fiscal year, compared to 93 in the last fiscal year and 105 in the fiscal year before that. Recently, a superior court judge rejected affidavits of merit in one lawsuit, ruling that the documents were too equivocal and did not meet the state's standard of negligence. Additional information.

WORKERS' COMPENSATION

As mandated by legislation that passed this year Tennessee has released a proposed physician fee schedule for workers' compensation. Tennessee had been one of the few states without a workers' comp fee schedule. The Tennessee Hospital Association says that the proposed rates would cover only about two-thirds of the costs of inpatient care and three-fourths of the costs for outpatient care. Orthopaedists in the state are concerned that the proposed rates could make hospitals and surgery centers less accessible to injured workers.

REIMBURSEMENT

The first systematic look at the physician work force in Rhode Island indicates that more doctors are coming into the state than leaving and that residents have easy access to health care. However, the study also indicates that one in four doctors intends to leave the state or medical practice within the next three years. Four out of five who say they want to leave blame low reimbursement rates; half also cite high medical liability insurance rates.

The largest-ever survey of New Jersey doctors finds that more than 1,000 of the state's nearly 20,000 practicing physicians plan to quit the profession or move to another state. Joel Cantor, director of the Rutgers Center for State Health Policy, which conducted the survey, cited the survey as "evidence that a lot of doctors are very frustrated." Doctors consistently named insurance costs, red tape and reimbursement rates as problems. Additional information.