April 2004 Bulletin

In Brief


Gov. Janet Napolitano signed into law legislation that requires a plaintiff in a health care liability case to file a preliminary expert witness affidavit with the complaint. The law, which becomes effective 60 days after the end of the current legislative session, requires an “affidavit of merit” that details the factual basis for the claim and the errors, acts or omissions that caused or contributed to the alleged damages. The new law also requires the medical expert to list his qualifications to express an opinion on the health care professional's standard of care, or liability for the claim.

A bill that would allow 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 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.

A prompt payment bill passed both houses. If it is signed by Gov. Dirk Kempthorne, 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 12 percent and the state can fine insurers not more than $5,000 for violations.

Podiatrists can now perform patient histories and physicals under legislation that deletes statutory language requiring a patient admitted to a hospital on the recommendation of a podiatrist to have their required history and physical performed by a physician.

The House passed legislation to create a $250,000 cap on noneconomic damages. A similar bill has passed out of committee in the Senate. Any legislation containing a cap will likely be vetoed by Gov. Tom Vilsack, who is a trial attorney.

The Missouri House passed legislation that, among other things, lowers the existing cap on noneconomic damages to $350,000 and sets a total cap of $400,000 for lawsuits arising from trauma care in emergency rooms. Another bill passed the House that presumes that all medical liability insurance premium increases greater than 20 percent are unreasonable.

New Jersey
After the failure of the Republicans to pick up seats in the Assembly last year, any medical liability reform legislation debated this year would certainly not have include a cap on noneconomic 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. The bill also allows defendants to file an affidavit of non-involvement, requires expert witnesses to have similar certification as the defendant, allows periodic payment for noneconomic damages over $1,000,000 and provides more leeway for judges to reduce verdicts.

New York
A physical therapy direct access bill passed the state Senate. The bill is a compromise measure that only allows direct access after three years of clinical experience. The physical therapist can treat for 30 days or 10 visits. The patient must also have been referred to the physical therapist within the last two years for the same condition.

Gov. Bob Taft signed a bill allowing the state to create a medical liability insurer if the commercial market is not covering a substantial number of physicians. A bill to freeze medical liability insurance premiums has been introduced into the Ohio state Senate. The one-year freeze would be an interim measure until reforms proposed by the Ohio Medical Malpractice Commission are instituted. It would not literally freeze premiums, but would require that insurers provide actuarial evidence justifying any request for a rate hike.

A bill passed both houses to allow podiatrists to admit patients to a hospital without physician participation.

Tort reform legislation passed in the Oklahoma House. The bill has a $300,000 cap on noneconomic 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) to lower their premiums by 25 percent on July 1, 2005.

In other Oklahoma news, the state announced that Physicians Liability Insurance Co., which insures about 80 percent of the state's physicians, was technically insolvent and was going to be under the formal supervision of the state.

Legislation passed both houses that permits podiatrists to do limited amputations of the foot. The measure states 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.”

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