STATE LEGISLATIVE UPDATE

As more state legislatures adjourned for the year in July the focus now moves to the state legislative elections and ballot initiatives in November. According to the National Conference of State Legislatures "more than 78 percent of the 7,382 legislative seats are up for grabs this year in all but six states - Alabama, Louisiana, Maryland, Mississippi, New Jersey and Virginia." 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: CA, MA, MI, NJ, NY, OH and PA. In July the legislatures in IL and NC adjourned. Through July there have been 117,249 bills introduced in the states in 2004 and 23,418 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

The Illinois legislature finally agreed on a budget in July after two months of intense negotiation. Unfortunately, the legislature could not agree on a medical liability reform bill before adjournment. Some towns in Illinois are trying to remedy this problem by passing ordinances to cap non-economic damages. These ordinances are almost certain to be overturned by the courts.

The legislature adjourned in North Carolina, as well, without addressing the medical liability insurance crisis.

The Wyoming legislature met in special session to consider medical liability reform bills. After failing to pass a constitutional amendment to allow a cap on non-economic damages in regular session the legislature reversed course and passed the amendment in July. The citizens will vote on the amendment in November. The language will simply state, "the legislature may by general law limit the amount to be recovered from a health care provider for damages for non-economic loss resulting from the death or injury."

Also in Wyoming the Governor signed legislation pushed by Sen. Barrasso, an orthopaedic surgeon, providing that statements of apology or compassion to a patient or their family are inadmissible at trial as evidence of liability.

Legislation passed the House in Michigan providing that a statement expressing sympathy made to a patient or the patient's family is "inadmissible as evidence of an admission of liability in an action for medical malpractice."

The game of ping-pong ended in Pennsylvania where the House and Senate kept passing constitutional amendments to allow a cap, but in different forms. Unfortunately, the opponents prevailed and the legislature failed to pass an amendment before their long summer recess.

Physicians in Florida were successful in their effort to get an amendment on the ballot in November that will limit the amount of attorney contingency fees. The trial lawyers have an amendment that will forbid any physician to be licensed if he or she has three or more medical liability judgments against them. Oregon physicians successfully got an initiative on the November ballot that restores the $500,000 cap on non-economic damages that was thrown out by the state Supreme Court in 1999.

The RAND Corporation released a study showing that California's reform law, called MICRA, has cut non-economic awards to plaintiffs by 30 percent. However since attorneys' fees are limited by MICRA, plaintiffs received only 15 percent less than they would have without the award cap or fee limits. A study of specialists in Pennsylvania published in July in Health Affairs found that 40% of the respondents were dissatisfied with the practice of medicine. Forty percent of respondents called their liability premium an "extreme burden" while an additional 40% called their premium a "major burden."

The Colorado Supreme Court ruled in July that the state's cap on damages (both economic and non-economic) was constitutional.

PROMPT PAYMENT

The courts in New Jersey certified a class action lawsuit by physicians against Horizon Blue Cross Blue Shield of New Jersey alleging violations of the prompt pay law. Pediatricians can qualify as a separate class for allegations of down coding, bundling of claims and refusal to recognize modifiers.

PHYSICIAN OWNERSHIP OF HEALTHCARE FACILITIES

The United States Department of Justice and the Federal Trade Commission released a 361-page report on the health care marketplace entitled Improving Health Care: A Dose of Competition. Among the report's recommendations is that states reexamine certificate of need (CON) laws. The report states that CON "programs are not successful in containing health care costs, and they pose serious anticompetitive risks that usually outweigh their purported economic benefits."

PRACTICE MANAGEMENT

Legislation passed the Senate in Massachusetts requiring the use of a common credentialing form and requiring insurers to act upon an application in 30 days. Legislation was signed by the Governor in Louisiana requiring insurers to act on credentialing applications within 90 days.

Another bill passed the Senate in Massachusetts that requires that surgery patients in an ambulatory surgery center to remain in the ASC until the professional staff: determines that the patient can be safely discharged; provides verbal and written instructions for post-surgical care to the patient; receives oral and written confirmation from the patient that the patient has sufficiently recovered from the effects of sedation; and, agrees to promptly readmit the patient if pain, bleeding or other significant symptoms occur, or if the patient is unable to manage the post-surgical care at home.