STATE LEGISLATIVE UPDATE

MARCH 2004 STATE LEGISLATIVE UPDATE

As you can see below medical liability continues to predominate in the states. For a toolkit on medical liability reform please visit www.pactproject.org.

As of the end of the month, the following state legislatures were in regular session: AK, AL, AZ, CA, CO, CT, DE, FL, GA, HI, IA, ID, IL, KS, KY, LA, MA, MD, MI, MN, MO, MS, NE, NH, NJ, NY, OH, OK, PA, RI, SC, TN, VT, and WI. In March the legislatures in IN, SD, UT, VA, WA, WV and WY adjourned. Through March there have been 262,842 bills introduced in the states since the beginning of 2003 and 47,864 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 Medical Group Management Association released a study that showed that between 2003-04 the average practice's medical liability premium increased by 37.24% after an increase of 39.6% the year before. Practices are limiting services and are concerned about losing physicians. The report can be read here: http://www.mgma.com/press/liabilityresearch.cfm. Legislation was signed into law in Arizona that requires a plaintiff in a health care liability case to file a preliminary expert witness affidavit with the complaint. The bill in Colorado allowing a judge to override the hard cap on economic damages if past economic damages are greater than $1,000,000 and if applying the cap would be unfair passed both Houses.

Legislation was introduced in Florida to enact a constitutional amendment to limit attorney contingency fees. The Florida Orthopaedic Society is collecting signatures to get the amendment on the ballot if the legislative route fails. Legislation passed the Iowa House to create a $250,000 cap on non-economic damages, but if it passes it likely faces a veto from Gov. Tom Vilsack who is a trial attorney. In Maryland the Governor's medical liability reform bill that would have lowered the cap on non-economic damages to $500,000 and make other changes was rejected by committees in both the House and Senate. The provisions of the health reform bill in Minnesota dealing with caps were taken out of the bill in March. Legislation passed the House in Missouri that, among other things, lowers the existing cap on non-economic damages to $350,000 and sets a total cap of $400,000 for trauma care in ERs.

The constitutional amendment in Pennsylvania to allow caps on non-economic damages for medical liability cases passed the Senate. Since the bill was different than the one that passed the House, the House must decide if they will support the Senate language. Doctors in Tennessee acknowledged that they would not see a bill with caps pass this year, but promised they would continue the effort in 2005.

A bill to create mandatory pre-trial screening panels passed the New Hampshire House of Representatives. Bills to create a $250,000 cap and to limit attorney contingency fees were sent for study in the N.H. Senate. Legislation has passed both Houses in New Jersey and is off to the Governor. After the failure of the Republicans to pick up seats in the Assembly last year it was certain that any legislation that passed would not have a cap on non-economic damages. The bill that passed creates a subsidy program for physicians in high-risk specialties. The program will be funded by an increase in fees for lawyers and physicians and a fee on all businesses in New Jersey. Additionally, the bill allows defendants to file an affidavit of non-involvement, requires expert witnesses to have similar certification as the defendant, allows periodic payment for non-economic damages over $1,000,000, and provides more leeway for judges to reduce verdicts.

The Governor signed the bill in Ohio to allow the state to create a medical liability insurer if the commercial market is not covering a substantial number of physicians. Tort reform legislation passed the House in Oklahoma. The bill has a $300,000 cap on non-economic damages, limits attorney contingency fees and restricts where a lawsuit can be filed. The 69-page bill was amended to add one paragraph at the end that may lead to the bill's failure. The language requires almost all insurers (not just medical liability insurers) on July 1, 2005 to lower their premiums by 25%. In other Oklahoma news, the state announced that Physicians Liability Insurance Co., which insures about 80 percent of Oklahoma's physicians, was technically insolvent and was going to be under the formal supervision of the state.

In Washington the House and Senate could not come to agreement on a bill and adjourned without addressing the access crisis in the state. A bill passed both Houses in West Virginia to create a Patient Compensation Fund to be funded by money from the tobacco settlement.

PROMPT PAYMENT

A prompt payment bill passed both houses in Idaho. If the Governor signs the bill only South Carolina and Nebraska will not have a prompt pay statute or regulation. Paper claims must be paid within 45 days and electronic claims within 30 days. If an insurance company has a contract with a provider that contains different payment requirements, the contractual provisions apply. Late interest is at 12% and the state can fine insurers not more than $5,000 for violations.

SCOPE OF PRACTICE

Legislation was signed by the Governor in Idaho to delete statutory language that requires a patient admitted to a hospital on the recommendation of a podiatrist to have their required history and physical performed by a physician. So podiatrists can now perform patient histories and physicals in Idaho. Legislation to expand the podiatric scope to include the ankle passed the Massachusetts Senate. A bill passed both houses in Ohio to allow podiatrists to admit patients to a hospital without physician participation. Legislation passed both houses in Virginia that podiatric scope does not include amputation of the foot "proximal to the transmetatarsal level through the metatarsal shafts. Amputations proximal to the metatarsal-phalangeal joints may only be performed in an [accredited] hospital or ambulatory surgery facility." Legislation to expand podiatric scope to include the ankle was introduced in South Carolina.

A physical therapy direct access bill passed the New York Senate. The bill is a compromise bill and only allows direct access after three years of clinical experience. The PT can treat for thirty days or ten visits. The patient must also have been referred to the PT within the last two years for the same condition.