Government Relations Report
2014: Difficult Election Choices and Notable Legislation
A key function of the government relations department is to identify and support candidates who will, if elected, tend to act in the best interests of our members. Often a candidate’s selection depends on his or her view of medical liability reform. A difficult choice arises when two candidates face each other and both support reform. The choice is made more difficult when the two candidates have each received support from us in prior elections.
There is no single test for deciding which candidate to support in this situation, but there are a number of important factors to consider. We might prefer a strong reform voice in one party caucus or the other, but party and legislative leaders have their own priorities and may take exception to our support for an opposition candidate. We might also have some expectation about which candidate is likely to win, but upsets are common and a wrong prediction can produce a lasting rupture in relations. Key endorsements by our political allies and state leaders matter, as do statistics: Whom does the voter registration favor? Who is better known in the district?
One option is to stay out of the race altogether, since the election will inevitably result in a pro-reform winner. However, as legislative races become more expensive—particularly when closely contested—either candidate is likely to view this as a kind of repudiation. Another option is to contribute to both candidates, but this may suggest to each that we are working against him or her.
In the end, we must make the choice we feel is best for our members. Arriving at that choice requires analysis, instinct, experience, and advice from trusted political allies. In the last election cycle, our political action committees (PACs) supported 448 candidates for state and federal office. Of the candidates we supported, 417 won new seats or were re-elected. We appreciate our members’ support of the PACs that allow us to help reform-minded candidates succeed.
Notable 2014 Legislation
In 2014, a number of states enacted laws affecting medical professional liability:
The most notable legislation of 2014 was a proposed new law that was not enacted. Plaintiff attorneys qualified Proposition 46, a ballot measure that, if approved by voters, would have gutted California’s Medical Injury Compensation Reform Act (MICRA), increasing the limit on noneconomic damages from $250,000 to over $1.1 million. The measure would also have mandated drug testing for physicians and required the use of a prescription monitoring system that is currently unable to meet the demands of the providers who use it voluntarily. Voters rejected the measure by an overwhelming 67 percent to 33 percent.
The Doctors Company led the effort to defeat this destructive and costly measure. We were the first to commit major funding support, and we remained at the top of the donor list throughout the campaign. Behind the scenes, we served on the campaign’s executive committee, enlisted our allies in the state capitol and Congress during the battle over state political party endorsements, traveled the state enlisting civic and business groups into the coalition, and debated the trial lawyers during the 18 months between the filing of the ballot measure and the November 2014 election. The Doctors Company’s commitment was critical to the success of the No on 46 campaign.
Assembly Bill 120: Wisconsin’s new “I’m Sorry” law is one of the nation’s strongest. The new Section 904.14 makes statements of “apology, benevolence, compassion, condolence, fault, liability, remorse, responsibility, or sympathy” inadmissible in subsequent court action, arbitration, or disciplinary proceeding. While many states have passed similar laws regarding expressions of sympathy or benevolence, this is one of only a few apology laws (Colorado, Connecticut, and Washington enacted the others) that specifically provide that expressions of fault are inadmissible. The new law took effect on April 10, 2014.
Legislative Bill 961: This bill raised Nebraska’s damage limitation for medical liability actions from $1.75 million to $2.25 million. The increase applies to occurrences after December 31, 2014. While many states have implemented caps on noneconomic damages, relatively few limit total damages. Nebraska and Virginia have similar limits; Colorado has separate limits for noneconomic and economic damages, but the cap on economic damages is subject to suspension by the court, and requests to do so are seldom, if ever, refused.
SB 311: This bill raised the noneconomic damages cap in Kansas to $300,000 for actions occurring after July 1, 2014, and provides for periodic increases. For actions after July 1, 2018, and before July 1, 2022, the cap will go up to $325,000; after July 1, 2022, it will go up again to $350,000.
The bill was sponsored by the Kansas Medical Society in response to dicta in a state supreme court opinion indicating that, in order for the cap to remain an adequate remedy under the Kansas constitution, the legislature should increase the cap.
SB 1180 (Patricia Vance-R): This bill would create a prescription drug monitoring database called the Achieving Better Care by Monitoring All Prescriptions Program (ABC-MAP) to help physicians identify drug seekers. The bill was sponsored by the Pennsylvania Medical Society. The legislation includes liability protection for prescribers and dispensers who submit information or do not seek information from the program prior to prescribing or dispensing. The system will be administered by the Department of Health and is expected to be operational by June 30, 2015.
Mandating the use of a similar system by physicians and pharmacists in California was part of Proposition 46, the ballot measure put on the November 2014 ballot by the trial lawyers to raise the state’s MICRA cap from $250,000 to over $1.1 million with an index going forward.
Aware that gutting MICRA held little appeal for voters, the ballot measure sponsors attempted to increase their chances of winning by adding mandatory use of the Controlled Substance Utilization Review and Evaluation System (CURES) database.
Unlike the Pennsylvania law, the California proposal would have imposed liability and presumed negligence for providers not using the system prior to prescribing or dispensing scheduled drugs, despite the inability of the database to respond to current users and the estimated tenfold increase in inquiries if the ballot measure passed. Voters saw through the attempt to disguise a cap increase as a patient safety measure and defeated Proposition 46 by a two-to-one margin.
SB 1355 (Judiciary and Rules Committee): This bill adds to existing law to provide that metrics established by the federal government under the Affordable Care Act and by insurers do not establish the standard of medical care in Idaho. This bill was enacted and became effective on July 1, 2014.
This bill is Idaho’s version of the Standard of Care Protection Act. Since 2009, The Doctors Company and others have pushed for a federal law to prevent courts and juries from basing the standard of care in medical liability actions on payment guidelines, practice model rules, and other metrics in federal laws (including the Affordable Care Act, Medicare rules, and the Social Security statutes).
This effort is ongoing in Congress, but several states have enacted their own versions. The Doctors Company was able to aid the passage of a state standard of care protection act in Georgia in a prior session. Idaho’s new law is part of what we hope is a growing trend.
The Doctor’s Advocate is published by The Doctors Company to advise and inform its members about loss prevention and insurance issues.
The guidelines suggested in this newsletter are not rules, do not constitute legal advice, and do not ensure a successful outcome. They attempt to define principles of practice for providing appropriate care. The principles are not inclusive of all proper methods of care nor exclusive of other methods reasonably directed at obtaining the same results.
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