State Legislatures Enact Medical Liability Reform Legislation

Lisa Percy, J.D., Manager
State Legislative and Regulatory Affairs


emocratic governors of Washington and Wisconsin signed medical liability reform legislation. In Washington, Governor Christine Gregoire negotiated an agreement between the medical community, insurance industry and trial attorneys resulting in H.B. 2292. The medical community and trial attorneys sponsored ballot initiatives last year that were rejected by voters. The legislation includes reforms in the areas of patient safety, insurance and civil procedure.

H.B. 2292 provides that certificates of merit must be filed by a qualified expert attesting to a reasonable probability that the defendant did not meet the required standard of care. The certificate must be filed when the suit is filed. Statements of apology or fault made by health care providers within 30 days of an injury or adverse event are inadmissible. Medical facilities (hospitals and ambulatory surgical centers) must report serious “adverse events” to the Department of Health; reporting for less serious “incidents” that could have injured the patient is discretionary. Prescriptions must be hand-printed, typed or electronically generated. With respect to insurance reforms, insurers and claimants must report closed claims to the insurance commissioner who will prepare anonymous summaries of the data acquired. H.B. 2292 establishes a voluntary arbitration system once the suit is filed and subject to a $1 million cap on damages. Evidence of collateral source payments (past and present) is admissible. H.B. 2292 extends the amount of notice a physician must receive before a medical malpractice insurer cancels coverage to 90 days. The insurance commissioner must approve new malpractice insurance rates. Insurers must submit proposed rate increases 30 days in advance. While H.B. 2292 does not include periodic payment or elimination of joint and several liability, the medical community continues to seek such reforms.

Governor Jim Doyle of Wisconsin signed legislation that provides a $750,000 cap on noneconomic damages recoverable for personal injuries. The cap does not apply to wrongful death actions. A.B. 1073 was introduced in response to a decision of the Wisconsin Supreme Court that invalidated a 10-year-old $350,000 ($445,775 adjusted for inflation) cap on noneconomic damages. Governor Doyle previously vetoed a bill that would have capped noneconomic damages. Because the bill provided separate caps for adults and children, Governor Doyle contended that it violated the equal protection clause. The legislature concluded that a $750,000 cap would accomplish the goal of affordable and accessible health care and would provide a reasonable response to the medical liability situation facing Wisconsin.

Idaho Governor Dirk Kempthorne signed H.B. 634, which makes statements of apology, condolence and sympathy made by health care professional or their employees inadmissible.

Office-Based Surgery
Kansas becomes the 21st state to regulate office surgery. Temporary regulations became effective on March 17, 2006. The rules provide that a physician must evaluate and record the patient’s condition, morbidities that complicate operative and anesthesia management, intrinsic risks and invasiveness of the planned surgery or procedure. The physician or registered nurse anesthetist administering anesthesia must be physically present during the intraoperative period and available until the patient has been discharged from anesthesia care. Each office-based surgery and special procedure must be within the scope of practice of the physician. The duration and complexity of the surgery or procedure must reasonably be expected to be completed, with the patient discharged, during normal operational hours. Patients must not be discharged until the discharge criteria have been met.

Any surgery or special procedure using general anesthesia or a spinal or epidural block must be equipped with medications and equipment available to treat malignant hyperthermia when triggering agents are used. The office must have a supply of dantrolene sodium adequate to treat each patient until the patient is transferred to an emergency facility. Qualified and trained personnel must be available and dedicated solely to patient monitoring. As of July 1, 2006, such offices must meet one or more of the standards established by the American Association for Accreditation of Ambulatory Surgery Facilities, the American Osteopathic Association, the Joint Commission on Accreditation of Healthcare Organizations, the Institute for Medical Quality and the Accreditation Association for Ambulatory Health Care.

Anesthesiologist Assistants
As introduced, Kentucky S.B. 175 would have eliminated the dual physician assistant/anesthesiologist assistant (AA) certification requirements so that applicants for AA licensure would only be required to complete an AA program. The version passed by the legislature directs the Legislative Research Commission to conduct a study that would compare the certification and scope-of-practice requirements of AAs in Kentucky to other states that license or certify AAs. The study also would compare the training, certification or licensure requirements and scope of practice of AAs and nurse anesthetists. The commission would gather data and testimony from affected persons and professionals regarding AAs in Kentucky.