By Jay Fisher, JD
The AAOS Medical Liability Reform Campaign is committed to assisting state orthopaedic societies in passing medical liability reform at the state level by providing funds to states in crisis. State orthopaedic societies have been submitting detailed applications for funding various medical liability reform efforts at the state level. A committee of orthopaedic surgeons reviews each grant request and funding is provided based on the likelihood of success of their efforts.
The Medical Liability Reform Campaign provided funding to the following state orthopaedic societies:
The Mississippi Orthopaedic Society was given a $37,500 grant, which is being used for a multi-faceted public relations campaign to enact tougher reforms in that state in 2004. Part of this effort includes collecting data on practice closings, physicians limiting their practices and other changes that have a negative impact on access to health care.
The Mississippi legislature attempted to solve the escalating crisis in October 2002 by creating a $500,000 cap on non-economic damages that will increase in two steps to $1,000,000 in 2017. The bill also made positive changes in the joint and several liability laws in Mississippi. The bill’s provisions went into effect on January 1, 2003.
In January 2003, Reciprocal of America, which had insured 535 doctors in Mississippi, was taken over by the state of Virginia. Then the state’s largest insurer, Medical Assurance, stopped writing new policies. Also in January, 12 physicians stopped practicing due to the crisis.
The legislature responded to the worsening availability crisis in two ways. The Senate passed legislation to lower the cap to $250,000, but the House failed to act on it. The legislature did pass a bill to create a liability insurer of last resort known as the Medical Malpractice Insurance Availability Plan. It is funded by participants and by a loan of $500,000 from the state. As of September, about 170 physicians are covered through the program.
However, orthopaedic surgeons continue to leave the state.
This is an election year in Mississippi and the medical community is working to elect tort-reform-friendly legislators. In the primary elections in August, candidates supported by the medical community defeated several anti-tort reform incumbents.
The New Jersey Orthopaedic Society (NJOS) was given a $9,000 grant to create the “120/120 program” that matches every legislator with one orthopaedic surgeon in his or her district. The purpose of this program is to develop relationships between ortho- paedists and legislators. Ongoing relationships between orthopaedists and their legislators will help in NJOS efforts to educate and influence legislators to vote in favor of tort reform in New Jersey. The NJOS has been promoting the program to its members and has developed a tool kit to help each physician who volunteers to be a contact.
Over the last two years, New Jersey has lost 25 percent of its obstetricians and neurosurgeons. Physicians have rallied three times at the state capitol and many physicians closed their practices for a day or more to attend one of the rallies.
The Assembly passed legislation without a cap on non-economic damages, but the bill did contain a program to subsidize premiums for physicians in high-risk specialties. The bill also contained other reforms such as mandatory mediation and expert witness reform. The Senate amended the bill to include a $300,000 cap on physician liability for non-economic damages and a state-run fund to pay an additional $700,000 in non-economic damages.
The Assembly stood firm in opposition to a cap and no agreement was reached before the legislature adjourned. The physician community asked the Governor to call a special session to deal with the issue, but he has declined to do so.
This is also an election year in New Jersey and the physicians worked hard to elect friendlier legislators in the Assembly. On October 7, 2003, the physician community took the afternoon off and walked precincts for endorsed Assembly candidates in targeted districts. From July to September the state medical society was the largest campaign contributor in the state. Despite these efforts, however, on election day the Democrats picked up six seats in the Assembly.
The Pennsylvania Orthopaedic Society was given $10,000 for a multi-media educational campaign targeting state senatorial districts to press for Senate passage of HB 1326. This bill provides for a public referendum to amend Pennsylvania’s constitution to allow the legislature to enact caps on non-economic damages.
According to a 2002 Pennsylvania Orthopaedic Society (POS) survey of orthopaedic surgeons, “Nearly 17 percent (16.8 percent) of the survey population report moving out of state or reducing their surgical services in some form including changing to non-operative practice, moving the majority of their practice out of state, changing to part-time surgery and early retirement.”
The problem results from skyrocketing verdicts. From 1994 to 2001, half of all verdicts in Philadelphia were for $1 million or more. In 1998, verdicts in Philadelphia alone were higher than in the entire state of California. Doctors in Pennsylvania paid out more than twice the national average on liability suits.
The legislature in 2002 passed several bills to address the crisis. The first bill allowed for periodic payments of future damages over $100,000, decreased the statute of limitations and phased out the CAT fund (the mandatory state-run excess liability provider), changing its name to MCARE. The second bill provided that defendants who are less than 60 percent at fault have to pay only for damages caused by their negligence. Joint and several liability still applies if one is liable for an intentional tort, intentional misrepresentation and for injuries caused by drunk driving or release of hazardous materials. Another bill limited the venue to the county where the action occurred, and the Supreme Court by rule required that an affidavit of merit be filed with a suit.
Gov. Edward G. Rendell (D) suspended the due date for 2003 premiums for MCARE premiums and has proposed a more comprehensive solution to the crisis. His proposal includes patient safety reforms, the abatement of all MCARE premiums in 2003, 2004 and 2005 for the four highest-risk specialties (including orthopaedics), easing the standard used by judges to lower a judgment, requiring state approval of rates and requesting that the Supreme Court by rule limit contingency fees.
On June 10, the state House of Representatives passed — by a 119-76 vote — a constitutional amendment to allow the legislature to place caps on damages. The House also passed legislation allowing the MCARE fund to charge higher premiums to providers with more than three paid claims within the last five years; providing for mediation, arbitration or non-jury trials in medical liability actions; requiring 120 days notice before non-renewing a policy and allowing voluntary binding arbitration instead of filing suits in medical liability cases.