The Doctor’s Advocate | Third Quarter 2019
Government Relations Report
Legislative Advocacy Update
The 2018 elections resulted in partisan shifts in state legislatures across the country, spurring trial lawyers and other opponents of liability reforms to introduce legislation that is hostile to physician interests. The staff of our Government Relations Department is responding to an unusually high number of attacks on medical liability reforms. Here are some examples from the 2019 legislative sessions.
SB 109 (enacted, effective August 2, 2019) requires Colorado’s statutory cap on noneconomic damages to be adjusted for inflation every two years beginning in January 2020. As introduced, the bill applied to noneconomic damages in medical malpractice cases. We worked with the medical community and other interested parties to educate legislators about the negative impact this legislation would have on healthcare providers and patients. As a result of those efforts, medical malpractice actions were excluded from the bill.
SB 201, the “Colorado Candor Act,” provides for open discussion with the patient within 180 days of an adverse healthcare incident. Healthcare providers and facilities may engage in communication that is not subject to discovery and not admissible as evidence. They may investigate how the incident occurred, disclose the results to the patient, and determine if compensation is warranted. Any compensation provided under this act does not constitute an admission of liability, is not a final judgment or settlement of a medical malpractice claim, is not reportable by medical malpractice insurers, is not discoverable, and will not be disclosed to third parties. (Enacted, effective July 1, 2019.)
SB 813 sought to increase the amount of damages that claimants could recover in a wrongful death claim to as much as $1.5 million. The Doctors Company and the medical community stopped this legislation in committee.
The Doctors Company and the medical community rallied to defeat HB 629, a bill that would have raised the state’s $600,000 cap on nonmedical damages to $2 million for individuals and $25 million for business entities (including most physician group practices). We and our allies provided testimony and statistical data in opposition to the bill, and the medical community turned out en masse to testify or to call and email legislators to register their opposition.
We are part of a broad coalition vigorously opposing AB 5612, a bill that would exponentially increase the damages a healthcare provider would be liable for in a wrongful death case. Coalition members are meeting with key legislators, distributing educational material and talking points, and providing testimony.
In addition, we are fiercely opposing AB 2370, a bill that would prevent a defendant in a medical malpractice injury or wrongful death case from conducting ex parte interviews with the patient’s treating physicians or other healthcare providers. This means that a healthcare provider’s attorney could not speak with the patient’s healthcare providers unless the patient’s attorney is present. The legislation specifically allows a patient’s attorney to interview the patient’s healthcare providers without the defendant’s attorney present. This one-sided legislation would severely and negatively affect a healthcare provider’s ability to defend against a charge of malpractice.
In Oregon, The Doctors Company and the business, insurance, and medical communities worked tirelessly to defeat HB 2014, a bill that would have eliminated the state’s $500,000 cap on noneconomic damages. The legislation failed to pass the senate by one vote. This bill’s defeat will be an issue in the next election, when supporters of the legislation will attempt to replace the legislators who opposed the bill.
Pennsylvania has a court rule that requires medical malpractice actions to be brought in the county in which the alleged negligence occurred. This rule prevents “forum shopping,” a practice that allows plaintiffs to sue in a jurisdiction with a more favorable jury in the hope of obtaining a larger verdict. The Pennsylvania Supreme Court’s Civil Procedure Committee proposed that this rule be repealed. Working with the state medical society, the state hospital association, and other affected parties, we helped to pass Senate Resolution 20, a motion that asked the court to not make changes to the rule pending further study. The court agreed to follow this resolution.
The Doctors Company, the Texas Alliance for Patient Access, and the medical community stopped HB 765, a bill that would have raised the state’s $250,000 cap on noneconomic damages to $342,265 and indexed annual increases to the Consumer Price Index. Our coalition educated new legislators on the benefits of the cap and the legislation’s likely consequences on access to care.
The coalition also successfully negotiated a compromise in HB 2362, a bill that affects the standard of care for healthcare providers in emergency situations. The Texas Trial Lawyers Association moved to essentially strip the emergency care standard from all healthcare providers. The coalition negotiated a compromise that keeps the standard in place but allows for exceptions when the patient’s treatment is not related to a medical emergency.
The coalition also helped enact SB 1189, legislation that places restrictions on legal services’ advertising. Among the provisions: It prevents television ads from using misleading terms like “medical alert,” “health alert,” “consumer alert,” or “public service announcement” that could make consumers think the ad contains professional, medical, or government agency advice about a medication or product. Many of these types of ads are funded by law firms trying to recruit clients for plaintiffs’ attorneys. For more on this topic, see our article in the second quarter 2019 issue, “Does Trial Lawyer Advertising Pose a Growing Risk to Public Health?”
The Doctors Company and its allies came up one vote short of defeating SB 5163 (enacted, effective July 28, 2019). The bill expands the list of individuals who may sue for wrongful death. The list now includes the immediate family of adult children with no financial dependence on the deceased. The legislation also imposes joint and several liability, meaning that in a case with multiple defendants, any defendant found at fault could be liable for 100 percent of any damages without regard to that defendant’s share of responsibility for the injury.
Join the Fight
We support candidates that favor medical liability reform through our political action committees (DOCPACs). Members also play a crucial role in advocacy efforts by providing testimony or participating in grassroots and key contact campaigns. Our Legislative, Regulatory, and Judicial Advocacy page includes details about DOCPAC and keeps you updated on bills and regulations we’re tracking in your state.
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 healthcare provider considering the circumstances of 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.
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