Politically Speaking

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2009 in Review

by Sal Bianco, Director, and Hal Dasinger, Director, Government Relations

^{Leona Egeland Siadek}

During 2009, budget problems dominated state legislative agendas across the nation. Much of our focus was on proposals for federal health care legislation. In addition, a number of important cases reached state supreme courts, and a number of important bills were considered by state legislatures. We highlight some of these below. For more information about medical liability and government, please contact the Government Relations Department at GovernmentRelations@thedoctors.com or (800) 421-2368.

—Leona Egeland Siadek Vice President, Government Relations

Congress
The Doctors Company has been working to insert tort reform into the various health care reform bills in both the House and the Senate and to prevent the creation of new liability. Our staff, our DC lobbyists, and our coalition partners have focused thousands of hours on the health care bills since early spring of 2009.

We have provided language and supporting materials for a variety of effective provisions, including periodic payments and collateral source offsets, to members in both houses who support liability reform. Early in the process, we assisted a pro-reform member who offered an amendment to the House bill providing for a $250,000 cap on noneconomic damages. That amendment was ruled “not germane” and was set aside without a formal vote.

While early attempts to amend the bills to include meaningful and effective liability reforms were, unfortunately, defeated, we were successful in convincing a key House member that any practice guidelines or payment protocols established in the legislation should not expand provider liability by creating new standards of care.

Because our efforts with leaders in the Senate to try to include similar language in the Senate bill were not as successful, our focus now is the process by which the House and Senate versions become a single, final proposal. At the time this article is being written, it appears that the Congress will use informal negotiations rather than a conference committee process to arrive at a final bill.

We will fight to keep our preferred language in the bill during the negotiation stage and will report the results of our efforts in an upcoming issue of the Advocate.

States
As in many states, budget woes preoccupied the California legislature during 2009. No medical liability proposals were introduced, although AB 542 (Feuer-D) drew opposition from The Doctors Company, the California Medical Association, and other advocates of liability reform. The bill dealt with payment for so-called “never events,” errors in the provision of health care services that should never happen. A prominent plaintiff-side law firm’s Web site calls the “never event” scenario a perfect training ground for inexperienced attorneys. The bill was put on hold.

The Medical Injury Compensation Reform Act (MICRA), California’s landmark medical liability reform, survived a direct challenge on state and constitutional grounds. When the state supreme court refused to review Van Buren v. Evans, it essentially endorsed the appellate court’s ruling that MICRA did not violate the plaintiff’s right to a jury trial or to equal protection and did not infringe on the separation of powers. The court described the plaintiff’s argument that MICRA conflicted with public policy as “meritless.”

Another constitutional challenge to MICRA has been filed with the same court that ruled in favor of MICRA in 2009 in Van Buren v. Evans. The plaintiff argues that the liability insurance crisis that provided the rational basis for the legislature to pass MICRA no longer exists, and is unlikely to recur because of rate control by the insurance commissioner established by Proposition 103. The case is Stinnet v. Tam.

The surprise announcement that Colorado Governor Bill Ritter will not run for re-election in 2010 may have implications for that state’s medical liability limits. The Doctors Company has helped defeat bills to drastically increase the cap on noneconomic damages in the last two legislative sessions. Ritter, a Democrat, initially supported efforts to increase the cap. The governor’s late announcement could help a Republican win the office and may add urgency to the personal injury lawyers’ push to get a bill passed in 2010.

The Florida Fourth District Court of Appeals in Raphael v. Shecter, 18 So. 3d 1152 (2009), ruled that the state’s cap on damages could not be applied retroactively. However, the decision did not address the constitutionality of the cap.

In 2009, Florida enacted Senate Bill 2252 (Baker-R). The bill defines when a claim exists and creates new reporting criteria for medical malpractice carriers, eliminating duplicative claims reports and improving the claims data collected by regulators. The Doctors Company supported the bill. 

The Doctors Company is supporting 2010 legislation proposing sovereign immunity for emergency room physicians and is opposing any bills jeopardizing the current physician-patient arbitration process.

Georgia’s 2009 legislative session saw no further erosion of enacted medical liability reforms. The 90-day 2010 regular session has commenced. The state budget shortfall dominates legislative deliberations, leaving little time to debate tort reform.

The Georgia State Supreme Court has heard arguments in two pending challenges to the state’s reform laws. In Pottinger v. Smith, 293 Ga. App. 626, 667 S.E. 2d 659 (2008), the court will decide whether evidence of gross negligence is required to claim negligence against an emergency room physician, as the statute now requires. In Atlanta Oculoplastic Surgery v. Nestlehutt, the court will decide an appeal of a February 2009 trial court ruling that the $350,000 cap on noneconomic damages is unconstitutional.

The state supreme court in Kansas heard oral arguments in October 2009 in a direct challenge to the state’s $250,000 cap on noneconomic damages. The court has not indicated when it will issue a decision.

The Ohio State Supreme Court issued two favorable decisions in 2009. In Hodesh v. Korelitz, 2009 Ohio 4220, the court decided that “high-low agreements” need not be disclosed to a jury. A high-low agreement is a form of settlement agreement that, contingent on a jury’s award of damages, sets a minimum amount to be paid to the plaintiff if the award is below that amount and a maximum to be paid if the award is above that amount. In Roe v. Planned Parenthood Southwest Ohio Region, 2009 Ohio 2973, the court upheld a state law providing that the physician-patient privilege generally forbids disclosure of non-party medical records without patient consent.

Maryland’s highest court, the Maryland Court of Appeals, has overruled a trial court decision that would have allowed a plaintiff attorney to avoid the state’s cap on noneconomic damages simply by refusing to submit a case to arbitration. The decision in Lockshin v. Semsker, 2010 Md LEXIS 4, is a big win for physicians and supporters of the cap.

Former Montana legislator Mike Wheat (D) has been appointed to the state supreme court to fill a vacancy. Justice Wheat will have to run for election in 2010. Wheat was chair of the Senate Judiciary Committee and a candidate for state attorney general, after a long career as a plaintiff attorney.

In Virginia the $2 million cap on total damages stopped increasing in 2008, as directed by the cap statute. Efforts by the trial bar to increase the total cap did not succeed in 2009, and now, with the election of a Republican governor and a net increase of six Republican seats in the Virginia House of Delegates, it should be even more difficult to pass a similar measure in 2010.

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