ASA May 2003 Newsletter

States Advance Professional Liability Reform

S. Diane Turpin, J.D., Assistant Director
Office of Governmental Affairs

On March 11, West Virginia’s Governor Bob Wise signed H.B. 2122 into law. The new law caps noneconomic damages at $250,000 per occurrence to be adjusted annually for inflation up to $370,000 per occurrence. The cap increases to $500,000 per occurrence for wrongful death, permanent and substantial physical deformity, loss of use of a limb or loss of a bodily organ system or permanent physical or mental functional injury that prevents the injured person from being able to care for him/herself and perform life-sustaining activities. For these exceptions, the cap will be adjusted annually for inflation up to $750,000. These limits apply only to defendants who have at least $1 million per occurrence in medical liability insurance.

The law also abolishes joint and several liability and allows the introduction of evidence of collateral source payments. It places a $500,000 cap on civil damages for injury to or death of a patient as a result of services rendered in good faith and necessitated by an emergency condition for which the patient enters a health care facility designated as a trauma center. The cap also applies to any act or omission of a health care provider in rendering continued care or assistance in the event that surgery is required as a result of the patient’s emergency condition. Certain exceptions apply.

The law creates a physicians’ mutual insurance company to provide medical liability insurance to West Virginia physicians. Physicians who purchase medical liability insurance are entitled to a credit against their provider tax equal to 10 percent of premiums in excess of $30,000 or 20 percent of premiums in excess of $70,000.

Arkansas H.B. 1038 was signed into law on March 25. Punitive damages will be limited to $250,000 or three times the amount of compensatory damages, whichever is greater, but may not exceed $1 million. Modifying the doctrine of joint and several liability, the law would limit damages in multiple-defendant cases to actual damages proved against individual defendants, unless one or more of the defendants shows they are unable to pay the full judgment. The law includes a sliding scale whereby the judge could increase the judgment against those defendants who could pay.

Idaho H.B. 92 was signed into law on March 26. It reduces the current cap on noneconomic damages from $682,000 to $250,000. Punitive damages are capped at the greater of $250,000 or three times the amount of compensatory damages.

Opt-Out Activity
On March 31, Kansas Governor Kathleen Sebelius forwarded a letter to the Centers for Medicare & Medicaid Services opting Kansas out of the Medicare requirement for physician supervision of nurse anesthetists. Kansas law requires nurse anesthetists to perform in an interdependent role as a member of a physician- or dentist-directed health care team. Furthermore, hospital regulations require the governing body of hospitals to define the degree of collaboration required for nurse anesthetist practice. In ambulatory surgical centers, state law requires that all anesthetics must be administered by a physician or under the supervision of a physician who is personally present in the surgical suite.

Colorado Governor Bill Owens has yet to send a letter to the Center for Medicare & Medicaid Services to opt out of the Medicare requirement for physician supervision. The litigation filed by the Colorado Society of Anesthesiologists continues. The Colorado Board of Health, however, has proposed regulations to eliminate the hospital regulations requiring physician supervision of nurse anesthetists who administer general or regional anesthesia. The Chair of the Board of Medical Examiners offered the proposal. A formal rulemaking hearing is scheduled for May 21.

Anesthesiologist Assistants
New Mexico S.B. 73, legislation to amend last year’s law regarding anesthesiologist assistants (AAs), was signed into law on April 8. S.B. 73 amends existing law to allow foreign-certified anesthesiologists to supervise AAs and to increase the supervision ratio from 1:2 to 1:3. The law also allows AAs to obtain a comprehensive patient history, perform a physical examination and present their findings to the supervising anesthesiologist who must conduct a preanesthetic interview and evaluation.

Legislation to license AAs to practice is pending in Florida (H.B. 1381 and S.B. 2332), Missouri (H.B. 390 and S.B. 300), New Jersey (A.B. 655) and Vermont (S.B. 144 and H.B. 375). Ohio has finalized regulations for AA practice.

Office-Based Surgery
Iowa H.B. 256 would require offices in which invasive surgical procedures are performed with or without anesthesia, analgesia or sedation, for which the known surgical complications may require emergency transfer, ambulance services or life-support measures, to obtain an annual license. The bill directs the Department of Inspections and Appeals to adopt rules for licensure to include at a minimum that the office maintain an advance transfer agreement with the emergency room of the hospital in closest proximity to the office and to have appropriate monitoring and emergency equipment and staff appropriately trained to use such equipment.

Pain Management
Missouri S.B. 391 and H.B. 556 would establish the Missouri State Advisory Council on Pain and Symptom Management. The council would make recommendations regarding pain management and the integration of pain management into the customary practice of health care professionals, analyze pain management statutes and regulations, identify the roles and responsibilities of health care professionals and review guidelines issued by the U.S. Department of Health and Human Services.

Mississippi H.B. 321, the Pain Relief Act, would prohibit the medical and nursing boards from bringing disciplinary action against a licensee for prescribing, dispensing or administering medical treatment for the therapeutic purpose of relieving intractable pain if it is done within the scope of practice of the licensee and in accordance with H.B. 321.

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