October 1996 Bulletin

18 states enact tort reforms

Action shifts to states after Republican election gains

For years, the media has been flooded with headlines announcing large sums of money awarded by juries for medical malpractice claims. Along with these large awards came higher costs for professional liability insurance which is one factor that has contributed to the higher costs of health care in this country.

As the threat of lawsuits has increased, so has the call for tort reforms to change the rules under which such large sums are awarded. The tort reforms have taken on several different issues, including expert witness reform, limits on punitive and noneconomic damages, changes in the statute of limitations for lawsuits and joint and several liability.

The fight for tort reform has been pursued at the federal level for many years with little action regarding malpractice. The 1994 elections significantly changed the makeup of the state legislatures. As Republicans gained crucial seats in several states, the opportunities for tort reform increased dramatically, allowing 42 states to propose tort reform legislation and 18 states to enact tort reforms.

As a result of the 1994 elections, the issue of tort reform also has gained more media coverage and candidates are including tort reform positions in their literature. According to Lissa Astilla, director of legislative affairs for the American Tort Reform Association, "Tort reform continues to be an issue that the voters want to hear about. Our office has received an increase in the number of requests by candidates for information on the issue, to use in their campaign literature and in their platforms." However, Astilla stressed that "passing the legislation is only the first step toward achieving tort reform. We also have to protect the enactments we have worked so hard to achieve."

This may be difficult because comprehensive reform in Illinois is currently being challenged in the courts, and it is possible that other states also may have to face similar challenges. The following are brief synopses of some of the most comprehensive reforms to date.

Illinois

A cap was placed on noneconomic damages of $500,000 which will be adjusted for inflation annually. This provision has been challenged in court and may be heard by the Illinois Supreme Court early next year.

Joint and several liability was abolished and has been directly linked to the issue of the noneconomic damages cap.
If the cap on damages is declared invalid, then joint and several liability will apply for malpractice cases only.

Expert witness reform requires the witness to be certified in the same specialty as the defendant and spend at least 75 percent of his or her time in clinical practice, active research, active teaching or a combination of the three. If the witness is retired, he or she must show proof of attendance and completion of continuing medical education and will not be eligible to testify after 10 years of retirement.

The affidavit of merit provision requires the identity of the physician in the original affidavit to be disclosed. Previously the affidavit did not require disclosure.

A plaintiff is barred from recovering damages if it is found that the individual is more than 50 percent at fault for the injury or damage.

North Carolina

Punitive damages may only be awarded if there is proof by "clear and convincing evidence" that fraud, malice or willful conduct has occurred. The decision to award punitive damages has to be determined separately from the verdict of the case. A cap is placed on punitive damages at three times compensatory damages or $250,000, whichever is greater.

Expert witnesses who testify against a board-certified physician are required to be certified in the same specialty and have practiced or taught that specialty for at least one year before the incident. Contingency fees are not permitted for those who testify in medical malpractice cases. Finally, in order to file a medical malpractice case in North Carolina, a person who will meet the qualifications of an expert witness in the case needs to assert that a standard of care was breached in the initial filing. Without that assertion, the case will be dismissed.

Texas

The amount of punitive damages is limited to $200,000 or two times economic damages plus an amount equal to noneconomic damages not exceeding $750,000. The law also requires "clear and convincing evidence" to prove malice in a case.

The medical liability reform law requires a plaintiff to file a $5,000 cost bond, place $5,000 in an escrow account or file an expert report on every physician or health care provider included in the claim. The law also strengthens the qualifications for expert witnesses.

Wisconsin

In Wisconsin, a limit of $350,000 was placed on noneconomic damages in medical malpractice cases. Punitive damages may only be awarded if defendants act "maliciously or in intentional disregard of the rights of the plaintiff."


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