August 2004 Bulletin

In Brief


Physical therapy and podiatry bills passed both houses after earlier being amended to be acceptable to physicians.


The state Supreme Court ruled that the state law on medical liability judgments does not violate either federal jury trial rights or the state’s equal protection rights. The Colorado Health Care Availability Act capped damage awards in medical malpractice cases by limiting total awards to $1 million per patient, of which no more than $250,000 can be for “noneconomic” damages such as pain and suffering. The ruling also upheld the periodic payment requirement and the caps on total per-patient damages and noneconomic damages.


Gov. Jeb Bush signed legislation that requires HMOs to provide fee schedules to their physicians. He also signed legislation prohibiting the licensing of specialty hospitals. Three state constitutional amendments will appear on the ballot this November. One would limit the fees of lawyers in medical liability cases. A second would strip the medical license from a physician who has lost three medical liability suits. The third would give patients the right to look at the records of physician errors.


The state Court of Appeals has declared unconstitutional that part of Indiana’s Medical Malpractice Act that applies to the statute of limitations for children. The judges ruled that the act created a double standard because it requires that claims be filed within two years, except for children younger than age six, who have until their eighth birthday to file suit. Children have until age 20 to file a lawsuit in other legal actions.


Maryland Gov. Robert Ehrlich Jr. has appointed a 20-member task force to prepare a report, due in November, on resolving the “medical malpractice insurance crisis” in the state. The task force includes doctors, legislators, insurance executives, a hospital official and the state’s health secretary and insurance commissioner.


Gov. Haley Barbour signed a medical liability reform bill passed in a legislative special session. The bill eliminates the future increases in the cap on noneconomic damages and maintains the cap at $500,000. It also includes in the cap damages for disfigurement, which previously were not within the cap. Furthermore, suits can only be brought in the county where the care was provided. Lastly, the bill completely eliminates joint and several liability; defendants are only liable for the percentage of damages equal to their percentage of fault.

New Jersey

Legislation passed both houses to enact a tax on ambulatory surgery centers (ASCs). All non-hospital-owned ASCs with at least $300,000 in gross receipts will pay an assessment equal to 3.5 percent of their gross receipts up to $200,000. Revenues from hospital-owned ASCs must be counted in the hospital revenue that is already taxed. A medical liability reform bill creating a subsidy program for physicians in high-risk specialties was signed into law.

North Carolina

Legislation has passed both houses in North Carolina that provides that statements of apology for adverse outcomes, offers to undertake remedial actions, and gratuitous acts to assist affected patients are inadmissible in court to prove negligence. Similar legislation has recently passed in Oregon, Colorado, Ohio and Wyoming.


Governor Bob Taft signed legislation that deems out-of-state expert witnesses to be licensed in Ohio, thus allowing Ohio to take disciplinary action against them for fraudulent testimony. Additionally, the bill requires a certificate of merit be filed by a similarly board-certified expert, allows a defendant to be dismissed from a case by filing a motion of non-involvement and requires expert witnesses to be certified in the same specialty as the defendant.


A year-long effort to amend the state constitution to limit the amount of noneconomic damages that can be awarded in a medical malpractice lawsuit failed at the end of the legislative session. The Senate Judiciary Committee tabled the House bill, and the chair of the House Judiciary Committee refused to bring up the Senate bill for consideration.


The U.S. Supreme Court ruled that the state’s insurer liability law violated the federal ERISA statute. The case affects right-to-sue laws in 10 other states as well. The Court ruled that insurers are not covered by state tort law and cannot be sued for violating a state-imposed duty of ordinary care. The only remedy available to injured patients is to sue under ERISA and obtain the costs of the services that were denied.


Wyoming state legislators have approved a proposed state constitutional amendment that would allow caps on noneconomic damage awards in medical liability lawsuits. Slight differences between the House and Senate versions must be ironed out before the governor signs the measure. The vote came during a special session called to deal with the medical liability crisis in the state.

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