STATE LEGISLATIVE UPDATE

Big events in February included a major tort reform victory in Georgia and a key court decision regarding physician owned physical therapy services in South Carolina.

As of February 28th, states currently in regular session are AK, AL, AR, AZ, CA, CO, DC, GA, HI, IA, ID, IL, IN, KS, KY, MA, MD, ME, MI, MN, MO, MS, MT, NC, ND, NE, NH, NJ, NM, NV, NY, OH, OK, OR, SC, SD, TN, TX, UT, VA, VT, WA, WI, WV, and WY. So far, as of February 24th, there have been 92,002 bills introduced in the states, and 3,317 have been enacted into law. Some of the bills the department of Socioeconomic & State Society Affairs is tracking are outlined below. If you have any questions, please contact Bruce Allain at allain@aaos.org (or at 847-384-4336).

TORT REFORM

The biggest news of the month comes out of Georgia, where on February 16th they became the latest state to enact meaningful tort reform. The new law sets a cap of $350,000 on noneconomic damages, which Georgia’s Medical Association was willing to accept because it would still provide meaningful relief. The law also has other key elements, such as creating tighter expert witness testimony rules, and preventing physician apologies from being used against them. In response to the new law, the state’s primary medical liability insurer pledged to roll back premiums.

A similar result has occurred in Texas, where one of that states top liability insurance companies has just announced that they will reduce rates as a result of the recently enacted $250,000 cap on damages. Another of that states insurers had already lowered its rates in response to the tort law reforms. The AAOS has prepared a Medical Liability Reform Toolkit.

PHYSICAL THERAPY

A serious blow to the physician ownership of physical therapy services comes from South Carolina this month. That state’s Attorney General had recently issued an opinion that interpreted the South Carolina Physical Therapy Act to allow for disciplinary action against physical therapists who accept referrals from a physician employer. A suit was filed to prevent the PT board from putting this into action, and in a long awaited decision, the court has ruled that the language of the South Carolina Physical Therapy Practice Act does allow physical therapists to be disciplined for accepting referrals from employing physicians. Delaware’s Attorney General gave a similar interpretation of that state’s practice act in 2002, and Arkansas, Arizona, Florida, Louisiana, Tennessee and Wyoming also have physical therapy practice acts that could be interpreted in this way. View the AAOS position statement on this issue.

In addition, there are a number of new direct access to physical therapy bills to report on. In February, bills that would allow this were introduced in Alabama, Connecticut, Minnesota and Tennessee.

ADVANCED IMAGING

There have been increasing efforts in the states to limit the ability of orthopaedic surgeons (and other non-radiologists) to be able to utilize advanced imaging technology (such as magnetic resonance imaging and tomography). A recent California bill would make the use of advanced imaging services an unlawful referral for all but radiologists. Tennessee has had two bills introduced this month on this issue. One would prohibit physicians from investing in radiologic equipment unless there is a radiologist employed to read the results.

The other bill would require physicians to disclose to patients any ownership interest they have in diagnostic equipment, and to provide alternatives to the patient. It would also delete a statement from state law that says that physician investment in health care provides important benefits for patients. In addition to orthopaedic surgeons, the issue of ability to use imaging technology is important to cardiologists, and the American College of Cardiology has been very active in fighting this trend as well.

PODIATRY

A bill has been introduced in Illinois that would remove language that currently excludes the administration of general anesthetics and the amputation of the foot from the definition of podiatry. Both New York and Texas saw legislation introduced this month that would expand the scope of practice for podiatrists to include the ankle.

OTHER ISSUES

Tennessee has introduced legislation creating guidelines for physicians testifying as expert witnesses in medical malpractice cases. These guidelines include that the physician expert witness be actively involved in a specialty appropriate to the subject matter in the case, and should be able to demonstrate evidence of relevant continuing medical education. Furthermore, such a witness must be prepared to document their percentage of time that is involved in serving as an expert witness, disclose the amount of compensation obtained for such activities, and state the total number of times the physician has testified for a plaintiff or defendant.

Rhode Island is currently considering legislation that would allow health care practitioners to negotiate jointly with health care insurers. There is a bill in the works in Tennessee that would impose civil liability on managed care organizations that fail to meet a standard of care in making health care decisions. Lawmakers in Illinois have introduced legislation that would revoke the license of any physician found to have committed 3 or more incidents of medical malpractice.