STATE LEGISLATIVE UPDATE

The big news in November was the election. I will expound on that theme more fully below.

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

As of the end of November, the following state legislatures were in regular session or in recess: MA, MI, NJ, NY, and OH. In November the legislature in PA adjourned. Through November, 92,732 bills have been introduced in 2004 and 28,054 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.

ELECTION RESULTS

While much of the attention was focused on the Presidential election almost all states had legislative elections and 11 had gubernatorial elections. While the result on the Federal level was positive for Republicans, the state elections favored the Democrats.

Prior to the election Republicans had control of both houses of the legislature in 21 states, Democrats had control of both houses in 17 and in 11 states the two parties each control one chamber (the Nebraska legislature is non-partisan). After the election Republicans had control in 19 states, Democrats in 20 and 10 had split control.

In the election Democrats gained control of the Colorado House, Colorado Senate, Montana House, Montana Senate, North Carolina House, Oregon Senate, Vermont House and Washington Senate. The previously Republican-controlled Iowa Senate is now tied 25-25. The Republicans won the Georgia House, Indiana House, Oklahoma House and the Tennessee Senate.

Before the election there were 28 Republican Governors and 22 Democrats. After the election the numbers were the same. The Republicans took over the Governor's office in Indiana and Missouri, while the Democrats picked up Montana and New Hampshire.

The country is so evenly divided that there are currently 3,660 Democratic state legislators and 3,657 Republican state legislators.

There were several ballot initiatives dealing with medical liability reform that met with mixed results. The physician-backed initiative in Nevada passed by a 60% to 40% margin. The two initiatives in Nevada put forward by the trial lawyers both went down in defeat. The Keep Our Doctors in Nevada Initiative that passed eliminates the exceptions to the cap on non-economic damages, leaving a $350,000 cap with no exceptions. Additionally, the initiative limits attorney contingency fees, eliminates joint and several liability, lowers the statute of limitation to one year after discovery, and allows collateral source evidence and periodic payment of future damages.

The Florida constitutional amendment to limit attorney contingency fees passed by a 64% to 36% margin. However, the two amendments pushed by the trial lawyers passed with wider margins. These amendments will make it easier for lawyers and patients to obtain information and strip the license of any physician with three liability judgments against them. Interestingly, the language requires a verdict in court or in binding arbitration.

Voters in Oregon and Wyoming barely disapproved of ballot measures to allow a cap on non-economic damages. In Wyoming the vote was 114,829 to 118,090. In Oregon the vote was 834,901 to 855,201. Voters in Wyoming barely approved an amendment allowing the legislature to create pre-trial medical review panels. The Wyoming Supreme Court had previously ruled that screening panels violate the state constitution.

State Supreme Court elections were positive for medical liability reform proponents. In Illinois the Supreme Court race in southern Illinois set a record with over $9 million being spent. The Republican candidate prevailed over a trial lawyer-backed candidate from Madison County (described as the nation's "judicial hellhole").

In Mississippi three Justices held off attacks by trial lawyer-backed opponents and a fourth Justice is in a runoff election. In Ohio all three medical liability-friendly candidates prevailed in Supreme Court races over trial lawyer-backed opponents. Other states seeing important Supreme Court victories for liability reform proponents were Alabama, Arkansas, Michigan, Montana, New Mexico, Texas and West Virginia.

TORT REFORM

The Utah state Supreme Court has upheld the state's cap on noneconomic damages in the case of a six-year-old boy with brain damage. The original jury had awarded $1.25 million, which the judge reduced to $250,000. The justices wrote that the cap was a "policy choice made by the legislative branch, and we cannot say that it is unconstitutional."

Wyoming is short 115 doctors and 25 support staff, and 51 physicians have left their practices in the state this year, according to a study by the Wyoming Office of Rural Health. Pennsylvania extended for another year the MCARE (state required extra liability insurance) abatement program. A survey by Pennsylvania Physicians for the Protection of Specialty Care found that orthopaedic and neurosurgical practices in nearly half of the state's counties reported that surgeons have left the state or reduced their surgical services since July 1, 2002. Additionally, more than 50 percent of orthopaedic practices say they are trying to recruit a surgeon, and most have been looking for more than a year.

SCOPE OF PRACTICE

The Texas Court of Appeals ruled that the Texas Orthopaedic Association has standing to challenge the Podiatry Board's ruling expanding the definition of the foot to include the ankle. The trial court now must decide whether the Board had the authority to pass such a rule.