The Doctor’s Advocate | Third Quarter 2017
Government Relations Report
After being consumed by an intense general election in 2016, state legislatures across the country began convening in January, and legislators turned their attention to the business of passing laws. Thousands of new bills have been introduced, and much of this legislation has the potential to affect our members.
As legislative panels consider the multitude of bills impacting the medical profession, our government relations team has advocated for members by directly engaging state and federal lawmakers and working with coalition partners. Additionally, the government relations team continues to monitor court cases and offer amicus curiae briefs.
Because every aspect of litigation is subject to legislative, regulatory, and judicial action, we remain vigilant in our advocacy efforts in all branches of government. The following presents a snapshot of our activities involving a few of the major legislative and judicial efforts around medical liability reform so far in 2017.
Attacks on Existing Medical Liability Reform
In HB17-1254, a bill backed by the Colorado Trial Lawyers Association, the legislature attempted to supersede existing medical liability caps by making noneconomic damages unlimited when there is a death of a minor. This legislation would have significantly reduced access to care for Coloradans. We fought vigorously against this bill, and it was successfully defeated by a narrow margin. We expect to fight similar legislation in Colorado and other states in the future.
Senate Bill 334 and HB 469 would have mandated that prejudgment interest be applied in all cases for all damages found. Current Florida law allows a judge, in his or her discretion, to apply interest only in limited circumstances. We worked in conjunction with the Florida Chamber of Commerce to help defeat these measures. If enacted, this legislation would have resulted in significant additional costs to resolve medical liability claims.
In a crushing blow to access to healthcare for Floridians, the Florida state supreme court’s decision in North Broward Hospital District v. Kalitan invalidated that state’s limit on noneconomic damages as applied to medical liability claims. The court held that the state’s noneconomic damages cap violated the equal protection guarantees of the state’s constitution. The court further held that there was no rational relationship between the cap and alleviating a purported malpractice crisis. We expect that this decision, which significantly affects the state’s tort climate, will increase the frequency and cost of claims.
Once again, the 2017 legislative session saw several bills introduced that would have significantly increased the maximum amount of noneconomic damages that may be recovered in medical malpractice cases. In cases of wrongful death, the legislation would have increased damages from the current $850,000 to $3.5 million. These bills died, but we expect similar bills will be introduced in future sessions.
New Mexico (with implications for Texas and surrounding states)
The New Mexico state supreme court rendered a decision in the Montaño v. Frezza case on March 13, 2017. At issue was whether a New Mexico resident who was treated in Texas by a Texas physician could file suit against that physician in New Mexico, and the physician would be held to New Mexico law without the benefit of Texas liability protections. The ruling allows the Texas Tort Claims Act to govern the case. This is a significant win for our members in both states and for access to care for their patients. The Doctors Company and coalition partners worked together to file an amicus brief that was cited in the court’s majority opinion.
The Doctors Company led a coalition in a protracted and pitched battle against the Oregon Trial Lawyers Association to preserve Oregon’s $500,000 cap on noneconomic damages in personal injury cases. Several bills were introduced that would have either eliminated the cap on damages entirely or raised the cap upwards of $10 million indexed for inflation, retroactive to all cases in which a final judgment has not been rendered.
The trial lawyers’ campaign in support of the legislation included significant attacks on the medical community on multiple fronts, including social media, print media, broadcast and cable television advertising, earned media, and in legislative hearings. Several members of The Doctors Company participated in a grassroots campaign and our advocacy efforts to help legislators understand the negative impact on access to care that this legislation would have had for underserved Oregonians if the bills had not been successfully defeated.
House Bill 719 would have appended a cost-of-living adjustment to the limit on noneconomic damages on medical malpractice awards. If enacted, this legislation would have quickly eroded the state’s cap and the benefits of medical liability reform to patients and their doctors. We worked with Texas Alliance for Patient Access and other coalition partners to ensure that the legislation failed to gain traction.
Legislation to Advance Medical Liability Reform
In February 2017, the legislature introduced Senate Joint Resolution 8. This resolution will place a constitutional amendment on the ballot in November 2018. If approved by voters, the measure would limit contingency fees charged by attorneys in civil lawsuits to a third of the net recovery. It would also limit punitive damages not to exceed the greater of three times the amount of compensatory damages awarded or $500,000. Noneconomic damage awards would be limited to $500,000 with a potential cost-of-living adjustment.
SB 940, a bill establishing a cool-down period prior to commencing a malpractice action, stalled on the floor and failed to move before the legislature adjourned for the year. We anticipate the bill’s reintroduction in a future session.
Iowa passed into law a comprehensive medical liability reform bill, SB 465, which includes a $250,000 limit on noneconomic damages, new expert witness standards, and a requirement that plaintiffs file a certificate of merit within weeks of filing a complaint. The limit on noneconomic damages includes an exception for substantial or permanent loss or impairment of a bodily function, substantial disfigurement, or death. Plaintiffs’ attorneys will attempt to use these exemptions to circumvent the cap.
The legislature enacted SB 4, which requires peer review of medical malpractice complaints by medical review panels before cases can go to court. A complaint can bypass the panel and go directly to court only by agreement of all parties.
Michigan and Missouri
We have been actively engaged in efforts to help enact legislation ensuring that damages recoverable for past healthcare expenses will not exceed the actual amount paid or owed by the claimant. These inflated awards are a significant component of damage awards, and reforms result in substantial savings. Missouri enacted SB 31, which allows only evidence of actual cost for medical care to be introduced at trial. In Michigan, SB 1104 has been signed into law, allowing recovery only for the amount paid for medical care and barring plaintiffs from introducing evidence regarding past medical expenses other than the actual amounts paid or still owed for healthcare services rendered.
We are working with the Ohio State Medical Association to support HB 7, the state’s “Medical Malpractice Litigation Improvements Act.” The bill includes a number of important reforms, such as broadening the state’s apology statute, maintaining confidentiality of peer-reviewed records, requiring a notice of intent to file a medical claim, and repealing the loss of chance theory. “Loss of chance” is the idea that if, as a result of negligence, a patient’s likelihood of survival or recovery is diminished, the patient has lost something of value and should be able to sue and be compensated for the loss.
Senate Bill 338 was enacted. The bill stops multiple medical malpractice cases from being filed for injuries sustained in one incident. It strengthens West Virginia’s cap on noneconomic damages and is likely to reduce the number of medical liability lawsuits in that state.
In addition to monitoring judicial action, we continue to monitor legislative developments (as legislative sessions in many states are ongoing) and advocate on behalf of our members and the medical profession. Look for updates in future issues of The Doctor’s Advocate.