The Doctor’s Advocate | First Quarter 2019
Government Relations Report

2019 Brings Increased Legislative Activity

Elizabeth Y. Healy, Assistant Vice President, Government and Community Relations

Three months into the 2019 legislative sessions, medical liability reform laws are under attack across the nation. These vital laws provide a stable and predictable environment in which medical professionals can practice good medicine, protect access to a full range of healthcare services for communities, and simultaneously ensure fair compensation to patients.

Every legislative session brings with it a different mix of political players, and that means both new threats to and new opportunities for medical liability reform laws. But the 2019 legislative season presents an unusually intense challenge due to the significant turnover produced by the November 2018 election, bringing in more new players than usual.

In addition to retirements, 469 incumbent state legislators lost their bids for reelection in 2018 in either general elections or primaries. (See Ballotpedia’s election analysis at ballotpedia.org.) Twelve state governments experienced a change in party control of the governor’s office, state house of representatives/assembly, or state senate. The number of state trifectas, in which one party controls the state house, senate, and governorship, rose from 34 to 37 (23 Republican, 14 Democrat).

One result of this high rate of turnover is a significant increase in new legislation. When the control of state legislatures changes hands, pent-up legislation is released. That is, representatives have an opportunity to introduce bills that might not have seemed worth proposing under the previous leadership. New members and newly empowered leaders look to make their mark by passing significant legislation. Additionally, some legislation that failed to advance in the past may now have an easier path to passage. Even when a chamber remains in control of the same party, a significant increase or decrease in the governing majority can lead to passage of legislation that was narrowly defeated in the past.

This general increase in legislative activity means that thousands of additional bills introduced across the nation will significantly impact our members—for better or for worse. About 170,000 pieces of legislation will be introduced over the course of 2019 at the state and federal levels.

All types of legislation—bills introduced by legislative bodies and ballot measures—can affect every single facet of medical malpractice litigation. Some typical examples of proposed measures in recent legislation that would impact our members include increasing noneconomic damage caps, changing expert witness standards, changing judgment interest rates, creating new standards of care, determining who may or may not bring a claim, changing statutes of limitations on claims, and determining what evidence can be submitted at trial. A multitude of specific changes to the law can generally affect the number of lawsuits filed, the outcome of those suits, the amount of money awarded, and the possibility of appeal.

During the widespread medical liability crises in the early 2000s, many states adopted tort reforms modeled on California’s landmark Medical Injury Compensation Reform Act (MICRA). But each new election leaves fewer and fewer legislators who participated in crafting and debating that legislation, and the November 2018 election saw more incumbents than usual leaving office. It takes extreme vigilance to preserve these hard-won reforms and educate new legislators about their value.

The Doctors Company engages with the legislative, rule-making, and judicial processes to advocate at state and national levels. As part of our advocacy program, the government relations team educates legislators and allied organizations about the potential effects of legislation. We work with liability reform groups across the nation and with state medical and specialty societies, trade associations, healthcare associations, patient groups, other medical liability insurance carriers, and many others. But we also seek new partners, forming ad hoc coalitions to advance or defeat specific legislation, as appropriate. We also engage state and federal lobbyists and consultants to assist with advocacy efforts.

Our national experience helps us identify emerging trends, and our multijurisdictional legislative experience allows us to take the lead in advancing and protecting medical liability reforms. We are able to gather and analyze data from across the country and translate the findings into information and studies that provide decision makers with quality information to make informed decisions. These valuable resources help us—and our legislative allies and coalition partners—win votes for or against specific bills.

Additionally, we engage in public relations, grassroots, and key contact campaigns, and our members play a significant role in these efforts. Many of our members help us advance and protect the practice of good medicine by sharing their stories with public officials. We thank those members and encourage others to advocate—for themselves and on behalf of their colleagues and patients.

In the legislative arena, The Doctors Company is the industry leader on medical liability reform. Moreover, our reputation for integrity has made us the preferred resource on the issue. As long as personal injury trial lawyers continue to find new and inventive ways to undermine medical liability reforms, The Doctors Company and its government relations team will work to protect you and to safeguard your patients’ access to healthcare.

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