State Efforts for Tort Reform Begin with the New Legislative Year
What do the new state legislative sessions around the country have in common? With few exceptions, the answer is tort reform. Bills have been introduced in at least 15 states to attempt to solve the problems associated with availability and affordability of medical liability premiums.
Under consideration are bills defining “loss of chance,” specifying who may be an expert witness, preventing venue shopping, abolishing joint and several liability, imposing sanctions against lawyers that file meritless lawsuits, creating medical-legal prescreening panels, creating state reinsurance funds, and even establishing caps on noneconomic damages. In addition to these legislative proposals, doctors in Arizona are gearing up for a November 2006 ballot measure to remove their constitutional provision against caps on damages. Doctors in Washington collected signatures to force their legislature either to address the issue of caps in this session or to put the question before the voters.
The issues and the arguments promulgated have changed little over the past five years. The trial lawyers continue to characterize effective caps on noneconomic damages as “weakening the jury system” or “taking away patients’ rights” or “putting obstacles in the way of sick and injured patients.” They say the solution is to get rid of “bad” doctors, eliminate laws that make hospitals immune to reporting errors, increase regulation of insurance companies, and freeze rates (even if rates are inadequate to maintain a stable company). Not mentioned are the rising dollar figures of verdicts and settlements and the meritless suits that abound.
If this sounds like the same story you heard in 2004 and 2003, that’s because it is! The trial lawyers insist that it was Proposition 103 rather than the Medical Injury Compensation Reform Act (MICRA) that made California’s premium rates stable. It seems that as soon as The Doctors Company debunks this myth, it pops up in legislative testimony in three more states.
Always remember that you—the constituent—are a most important part of the lobbying team for or against legislation. Your Government Relations Department and its state and federal lobbyists can work around the clock, but if officeholders do not hear from their constituent doctors, the case we are making goes unproven. To help you fulfill your part of the equation, we have posted information on our Web site that you can use for this purpose. Go to www.thedoctors.com, where you will find links to our Political Action Center. You can find out your representatives’ contact information as well as hints about communicating with legislators.
Recent State Activity
Ohio made significant progress last year by passing a bill that included caps on noneconomic damages for all tort cases. They also elected four justices to the Ohio Supreme Court that will interpret the law and not rewrite it.
Maryland went into special session to try to create a state entity to help pay for liability damages. They passed a bill that would ensure economic instability for companies selling insurance in that state. The bill was vetoed by the governor, but, in a dramatic demonstration of trial lawyer influence, the legislature overrode the veto.
In Colorado, H.B. 1095 was introduced to name the insurer along with the insured in every claim filed. This would have set up a complicated and possibly an adversarial relationship between doctor and insurance company. The tort reform community worked hard to kill the bill, and the author dropped it when she did not have the votes. Be on the lookout for similar proposals in other states.
Federal Legislation
The Class Action Fairness Act of 2005 passed the U.S. Senate on February 10 by a vote of 72–26. The bill is going to the House as we go to press.
Congress is addressing legislation to curb mass torts, limit asbestos cases to real victims, and pass caps on noneconomic damages. Republican gains in the Senate are more favorable to advancing these issues, but no bill can garner sufficient numbers without bipartisan support.
H.R. 4571, the Lawsuit Abuse Reduction Act of 2004, was proposed to mandate sanctions against personal injury lawyers who abuse the system. The bill passed the House in September but was not taken up in the Senate during the waning days of the session. Representative Lamar Smith of Texas plans to reintroduce the bill in the House early in the 2005 session.
The first of many medical liability reform measures to be introduced this session is H.R. 534 by Chris Cox (R-CA). It mirrors House Bill 5 of last year, which passed the House on a bipartisan vote. In the Senate, S. 354 has been introduced by Senators John Ensign (R-NV) and Judd Gregg (R-NH). Be sure to visit our Web site for updates on federal and state legislative activities.
Your Government Relations staff will continue to advocate for you at all levels of government. With your contributions to both Federal DOCPAC and our state PACS, we can reinforce words with dollars in support of those officeholders that support us. Effective tort reform remains our joint mission.
About the Author
Leona Egeland Siadek, Vice President, Government Relations.
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.
The ultimate decision regarding the appropriateness of any treatment must be made by each health care provider in light of all circumstances prevailing in the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.
The Doctor’s Advocate is published quarterly by Corporate Communications, The Doctors Company. Letters and articles, to be edited and published at the editor’s discretion, are welcome. The views expressed are those of the letter writer and do not necessarily reflect the opinion or official policy of The Doctors Company. Please sign your letters, and address them to the editor.