April 2003 Bulletin

Progress made on tort reform initiatives

Orthopaedists take action at the state level

West Virginia Gov. Bob Wise (left) shakes
hands with David L. Waxman, MD, after
signing a tort reform bill in that state.

By Sandra Lee Breisch

A rooftop sign reading, Help Stop the Physician Exodus, hangs atop the office of Scranton Orthopaedic Specialists, PC in northeastern Pennsylvania.

"We’re trying to educate our patients about the professional liability crisis in this state," explains P. Christopher Metzger, MD, second vice president of the Pennsylvania Orthopaedic Society (POS). "We want our patients to know that patient access to medical care is threatened. Unfortunately, they do not truly understand the crisis because the media is full of opposing arguments."

Pennsylvania experience

As with other states fighting for tort reform, Pennsylvania physicians are leaving the state to practice elsewhere–in states with tort reform modeling California’s Medical Injury Compensation Reform Act (MICRA) or in states with lower professional liability premiums. Others are retiring early and residency programs are at a loss because they cannot attract candidates, notes Dr. Metzger.

Pennsylvania physicians who remain in practice, such as Dr. Metzger, are fighting vigorously for medical liability reform on both a state and national level.

"Pennsylvania’s plea is identical to every other state that does not have tort reform–we need it to ensure access to patient care," stresses Dr. Metzger. "Lawsuit abuse is endangering access to care in Pennsylvania. For instance, Shawn Hennigan, MD, a shoulder specialist in our group, is leaving to practice in Green Bay, Wis. It was a gut-wrenching decision for him to leave his patients, family and friends. We hate to lose him."

Dr. Metzger is on the interim board of Pennsylvanians for Patient Access (PPA), a coalition of doctors, patients, hospitals, health care providers and businesses working together to preserve patient access to high-quality health care and educate the public by grassroots efforts.

PPA supports enacting and preserving long-term tort reform on the state and federal levels in order to strengthen the patient-physician relationship and ensure patient access to medical care.

PPA is working to reform the legal system by amending the Pennsylvania Constitution to allow the Pennsylvania General Assembly to establish limits on non-economic awards in all tort cases and establish a sliding scale for attorney’s contingency fees in order to maximize the recovery for patients. Further, PPA supports judicial reforms to bring balance to Pennsylvania’s legal system.

In Indiana, Pa., the little town where Jimmy Stewart was born and raised, the professional liability crisis also has hit home.

"Access to patient care will not be preserved without significant short- and long-term relief," explains Paul D. Burton, DO, an orthopaedic surgeon and president of the POS. "Although a number of medical liability reform bills have been put on the table, Pennsylvania needs legislation which will provide caps on non-economic damages. The only way to get that in our state is to change the constitution–an action that requires a majority vote in two consecutive sessions of the legislature, followed by a majority vote in a public referendum."

Dr. Burton says he is looking elsewhere to practice, in a state that has effective tort reform like California’s MICRA. "All of us [physicians] have to think about survival and what the next few years are going to be like. We can’t stay here without immediate relief. It’s that simple," he stresses.

According to Dr. Burton, premiums vary greatly across Pennsylvania. "I pay some of the lowest in the state, $45,000 a year," he says. "In our practice, our premiums are small compared to $150,000 and $220,000 a year that physicians are paying in Philadelphia."

Dr. Burton wonders what his premiums are going to be like next year. "The premiums can double, even triple–which they have done in Philadelphia and Scranton and that’s why we have to think about leaving Pennsylvania unless there is immense reform."

For more information about what POS is doing for the professional liability crisis in Pennsylvania visit its Web site: http://www.paorthosociety.org/.


One of Nevada’s leaders of the legislative battle for tort reform is Michael D. Daubs, MD, past president of the Nevada Orthopaedic Society and AAOS Board of Councilors representative from the state of Nevada. He is part of a liability reform coalition that helped pass a law last year to institute a $350,000 cap. He says physicians are concerned that the current bill allows the judge–in exceptional circumstances–to override the $350,000 cap. "Physicians fear that the judge can ignore the $350,000 cap," says Dr. Daubs. He also noted that the "undefined exception" would deter insurers from lowering premiums.

A physician-led group in Nevada, "Keep our Doctors in Nevada," is fighting to eliminate the current exceptions in the law. They’ve drafted Initiative Petition 1 and got enough signatures to force it on the ballot if the legislators decide not to deal with it, explains Dr. Daubs.

"Another concern of ours is that if the doctors are successful in getting rid of the exceptions in the cap, the court system could throw out the entire cap as ‘unconstitutional,’" explains Dr. Daubs. "So, there essentially will be ‘no cap’ at all."

New Jersey

Another state devastated by the professional liability premium crisis is New Jersey. Observers estimate that by year-end approximately 25 percent of New Jersey obstetricians, neurosurgeons, orthopaedists and other high-risk specialist will retire, leave the state or modify their scope of practice due to the skyrocketing costs of professional liability insurance premiums.

"Unless tort reforms are passed–such as a reduced statute of limitations for filing a suit and a $250,000 cap on pain and suffering damages–physicians will take action as we did during the week of February 3, 2003," says Steven Berkowitz, MD, former president of the New Jersey Orthopaedic Society and a member of its leadership committee. "During that week, 8,000 doctors protested the rising professional liability premiums with local and statewide activities, including a rally in the State Capital Trenton and visits to legislators’ offices. Non-emergency care was halted during that week."

Dr. Berkowitz has been working with physicians all over the state to petition the governor and legislature for tort reform. What’s on the table now is medical liability legislation that has been developed by two Senate committees. The Medical Society of New Jersey (MSNJ) has been working with those committees to craft the bill titled, "New Jersey Medical Care Access and Responsibility in Patients First Act." This was released and passed by the State Senate on March 20, 2003 by a vote of 32 to 5 with 3 abstentions. It is now on to the Assembly, where anti-tort reform resistance will be stronger.

The Senate bill calls for a $300,000 cap on physician payment for non-economic damages. This limit is per event and not per defendant. Any non-economic award above that limit would be paid by an Excess Liability Fund. The fund will pay up to $700,000 additional, for a total non-economic payment per event of $1,000,000. The Excess Liability Fund would be capitalized with a $3.00 surcharge per person per year on persons required to obtain unemployment insurance policies, as well as a $50.00 annual fee charged to physicians, osteopaths, chiropractors, dentists, podiatrists, optometrists, nurses and lawyers. These fees should total approximately $25,000,0000 per year, which is the fund cap. For more information on this bill, visit the Web site at: http://www.msnj.org/advocacy/BILL_SUMMARY.asp.

However, according to a summary of the proposed medical liability Senate committee substitute, February 20,2003 by Raymond Cantor, MSNJ, Director of Governmental Affairs, "As with any legislative proposal including caps, this could be changed by the legislature in the future. Because this language would be in the statute, it would take the votes of a majority of senators, plus the majority of assemblymen, plus the governor to change its provisions."

"Ideally, we would like to see a $250,000 cap on non-economic damages, but a compromise was struck at the $300,000 cap on physician liability," explains Dr. Berkowitz. "The Senate bill lowers the statute of limitations on pediatric injuries and birth trauma, strengthens the Certificate of Merit process and expert witness requirements, changes certain discovery rules that may eliminate many frivolous suits and establishes a 13-member commission to study the tort reform crisis and to make further recommendations to the current proposals going forward."

A statewide teleconference was also held in April to update the physician community. "Physicians of New Jersey were encouraged to contribute to their state medical PAC, as well as their specialty society PACs–in preparation for the upcoming November elections," says Dr. Berkowitz.

West Virginia

After years of hard work to get major tort reform in West Virginia,victory became a reality when Gov. Bob Wise (D) signed H.B. 2122–a bill relating to medical professional liability–on March 11, 2003. It becomes law on July 1, 2003 and applies to all lawsuits filed thereafter.

David L. Waxman, MD, president of the West Virginia Orthopaedic Society (WVOS) –who fought so vigorously for tort reform–was looking over Gov. Wise’s shoulder when he signed the bill. "The primary goal of that bill was to have good tort reform," explains Dr. Waxman. "However, the bill the Governor signed also included tax credits and a financial package to help provide financial support to fund the Physician’s Mutual Insurance Co., which will hopefully provide liability insurance at an affordable cost to physicians."

The bill puts a cap on non-economic damages at $250,000 per occurrence. It lowers the existing $1 million cap on awards for pain and suffering and other intangible losses to $250,000 per occurrence–regardless of the number of plaintiffs, defendants or distributees of an estate.

In cases where the plaintiff proves malpractice which results in 1) wrongful death or 2) permanent and substantial physical deformity or loss of use of limb or loss of a bodily organ system or 3) permanent physical or mental functional injuries that permanently prevent the injured person from being independently able to care for himself and perform life-sustaining activities, the cap is lowered from $1 million to a maximum of $500,000.

Other states fight for tort reform

Other state legislatures considering tort reform measures include Connecticut, Florida, Georgia, Kentucky, Massachusetts, Mississippi, Missouri, Montana, New York, Rhode Island, Texas, Washington and Wyoming.

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