States Address Medical Liability Reform

S. Diane Turpin, J.D.
Associate Director of Governmental Affairs


hile medical liability reform legislation languishes in the U.S. Senate, states are making strides to address the increasing problems caused by the unaffordability and unavailability of medical liability insurance. Some states must contend not only with the difficulty of passing such legislation through the House and Senate but also must take issues to the general population for a vote. In November, Florida, Nevada, Oregon and Wyoming will have medical liability reform issues on the general ballot.

In Florida, voters will have an opportunity to pass an initiative to amend Florida’s constitution to include a provision that an injured claimant who enters into a contingency fee agreement with an attorney for a medical liability claim is entitled to no less than 70 percent of the first $250,000 and 90 percent of any damage award of more than $250,000. The purpose of this proposal is obviously to ensure that the injured claimant benefits more from the damage award than the attorney who files the case. The trial lawyers have sponsored two amendments that will be on the November ballot as well. One would amend the constitution to prohibit a physician who is found to have committed three or more incidents of medical malpractice from being licensed in the state. The other initiative would allow patients to have access to any records made or received by a health care provider or facility related to an adverse medical incident.

Nevada physicians are hoping residents will pass liability reform measures that the legislature failed to pass. The “Keep Our Doctors in Nevada” initiative would establish a $350,000 cap on noneconomic damages. The trial attorneys have two ballot initiatives. One measure would require insurers to reduce insurance rates, and the second measure addresses frivolous lawsuits. Both measures include a provision that would invalidate any medical liability reforms enacted by the legislature and the voters, including the “Keep Our Doctors in Nevada” initiative.

Oregon has several medical liability measures on the ballot, including an initiative to amend the constitution to establish a $500,000 cap on noneconomic damages. The ballot initiative received significantly more signatures than required to take it to the voters in November.

Wyoming legislators passed legislation to amend the constitution to permit the legislature to enact caps on noneconomic damages in medical liability cases. This amendment will be placed on the November ballot for approval by the voters. The legislature also passed a bill to create a medical liability insurance account from which physicians may obtain loans to help pay the costs of insurance and authorized several studies on medical liability insurance reforms.

Other states have passed additional legislation to strengthen existing laws. Mississippi, which passed significant reforms less than two years ago, passed legislation establishing a hard $500,000 cap on noneconomic damages, deleting the exceptions that were included in the cap passed in 2002 as well as the increases in the cap that were scheduled to become effective in 2011 and 2017. The law also abolished joint and several liability for economic and noneconomic damages, strengthened the current venue laws and waived the medical privilege in any medical liability action involving more than one defendant, allowing defendants to collaborate and discuss case strategy.

Ohio passed two laws this session related to medical liability reform. One bill strengthens expert witness requirements by requiring the expert to practice in the same or substantially similar specialty as the defendant. The law also requires the expert to be board certified if the defendant is board certified. In addition, when the expert is from outside the state, the expert will be deemed to have a temporary license to practice medicine in Ohio and will be under the authority of the State of Ohio Medical Board. The second bill places limitations on how and when insurers may cancel, terminate or fail to renew an existing insurance policy.

Oklahoma adopted legislation establishing a $300,000 cap on noneconomic damages where the defendant has made an offer to settle and the amount of the verdict awarded to the plaintiff is less than one and one-half times the amount of the final offer of judgment. The cap would not apply if at least nine members of the jury find by clear and convincing evidence that the defendant committed negligence or if they find by a preponderance of the evidence that the defendant’s conduct was willful or wanton. The cap will be adjusted annually for inflation. The law maintains the existing $300,000 cap for any medical liability cause of action related to pregnancy, labor and delivery and any immediate postpartum period or care provided in an emergency room.

The Washington State Medical Association has filed a ballot initiative that will be sent to the legislature in the 2005 session. If the legislature fails to act on the initiative, it would be placed on the November 2005 ballot for the voters. The initiative would establish a $350,000 cap on noneconomic damages for physicians and a $700,000 cap on noneconomic damages for institutions with no individual institution liable for more than $350,000 in noneconomic damages.

The American Medical Association now lists 20 states as being in crisis, including Arkansas, Connecticut, Florida, Georgia, Illinois, Kentucky, Massachusetts, Mississippi, Missouri, Nevada, New Jersey, New York, North Carolina, Ohio, Oregon, Pennsylvania, Texas, Washington, West Virginia and Wyoming.