AAOS Bulletin - June, 2005

In Brief


Arizona has passed partial tort reforms, including limiting those who can testify against doctors in medical liability claims to individuals who practice in the same area as the physician being sued. The law also has a provision that allows physicians to offer apologies and sympathy without fear that the statements could be used against them in a malpractice action. Legal experts and the governor are concerned that the law will be struck down as unconstitutional.


The state’s Insurance Commissioner has proposed a plan to deal with skyrocketing medical liability insurance rates. The plan includes subsidizing premiums for hard-hit specialties, expanding reporting of malpractice settlements, recruiting more companies to write malpractice policies, looking into allowing physicians to operate their own insurance company and doing a more thorough review of proposals submitted by malpractice insurers for rate hikes.


State law currently allows physicians to go without liability insurance if they can prove they are able to cover $250,000 through a letter of credit or an escrow account. New legislation being considered would require doctors to prove they can cover $750,000. Should this law pass, many physicians currently going bare will either have to purchase medical liability insurance or leave Florida.


Doctors and hospital administrators recently met to discuss the state’s emergency coverage crisis. Because physicians are refusing to work on-call on islands other than Oahu, significant numbers of patients must fly to Oahu for needed treatment. Queen’s Medical Center, the state’s only trauma center, reports being overloaded both by trauma cases and routine nontrauma cases sent by hospitals that do not have specialists available to treat these injuries.


Legislators expanded the scope of practice for podiatrists to include the ankle and those soft-tissue structures below the knee governing the function of the foot and ankle. Language forbidding podiatrists from amputating the foot was struck from state law, but an amendment stating that advanced surgical procedures must be performed in facilities that have peer review systems in place and are accredited by either the Joint Commission on Accreditation of Healthcare Organizations or the Accreditation Association for Ambulatory Health Care was included.


Missouri has recently seen sweeping medical liability reforms become law. Among the provisions of the law are new limits on punitive damages and a $350,000 cap on noneconomic damages irrespective of the number of defendants. In addition, the new law places limits on joint and several liability and restrictions on venue shopping. Furthermore, it provides civil immunity from damages for physicians who provide volunteer services and makes statements of sympathy by medical providers inadmissible as evidence.


The antitrust law suit brought by BlueCross BlueShield against a group of physicians (mentioned in the February 2005 Bulletin) has been settled. Under the terms of the settlement, the physicians who dropped out of the network will not have to pay damages or rejoin the plan. Many observers were concerned that if the Blues won, other plans might also attempt to use antitrust laws to force physician groups to join managed care networks.

A number of bills reforming aspects of medical liability lawsuits passed. Steps taken include preventing expressions of sympathy from being used against physicians, protecting doctors from being sued for the mistakes of individuals not under the doctor’s supervision and establishing strict criteria for who can testify as an expert witness. Other bills passed include one that protects hospitals from being sued for the actions of independent contractors and one that restricts the amount of damages that can be awarded for a reduced chance of a patient’s recovery.

South Carolina

Significant tort reform legislation was signed into law in April. Among other things, the new law caps noneconomic damages at $350,000 per defendant and limits the noneconomic damages a plaintiff can collect in cases with multiple defendants to $1,050,000. It also requires parties to participate in mediation before a case goes to trial, and creates new rules to determine who can testify as an expert witness.


Legislation that requires disclosure by insurance carriers of bundling and downcoding practices passed. The new law also requires insurers who engage in these practices to have a payment dispute mechanism.


Washington has closed a program designed to help physicians find medical liability insurance due to a lack of interest. Only two physicians sought help finding coverage in the last eight months. The state’s Insurance Commissioner noted that costs are lower and availability of insurance has improved.

West Virginia

Tort reform enacted in 2003 is showing tangible results. The state has seen an increase in the number of new physicians licensed and a decline in defense costs for liability insurance companies. In addition, while medical liability rates are still increasing, the rate of increase has slowed considerably.

Prepared by Bruce Allain, JD, a legislative analyst in the department of socioeconomic and state society affairs. He can be reached at allain@aaos.org

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