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State Watch

Recent Developments in Medical Malpractice

Liability in All States

(Courtesy of The Kaiser Daily Health Policy Report)

Alaska: The Alaska House last week voted 22-18 to pass a bill (SB 67) that would lower the cap on non-economic damages in medical malpractice cases to $250,000, and to $400,000 in cases involving wrongful death or severe physical disfigurement if a patient is more than 70% disabled, the Fairbanks Daily News-Miner reports. Currently, non-economic damages are capped at the greater of $400,000 or $8,000 times the patient's life expectancy, while non-economic damages in cases of wrongful death or severe disfigurement are capped at the greater of $1 million or $25,000 times life expectancy. State Rep. Mike Kelly (R) said the legislation is intended to attract more physicians to the state, ensure that malpractice insurance providers remain in the state and stabilize insurance premium rates. However, opponents of the bill say there is no clear evidence that the legislation would achieve those goals (Fairbanks Daily News-Miner, 5/6).

Arizona: Arizonans for Access to Health Care, a group formed by the Arizona Medical Association, has decided not to pursue a constitutional amendment to create new limits on medical malpractice lawsuits, CongressDaily reports. AAHC President Bruce Bethancourt said that "many Arizona physicians continue to struggle to keep their doors open" because of lawsuits, but polling conducted for his group showed that state residents were unlikely to approve an amendment. A group supported by Arizona attorneys has been raising money to defeat a potential ballot measure (CongressDaily, 1/30).

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Arkansas: A 2003 state tort reform law (Act 649) has not led to reduced malpractice insurance premiums, according to a report by the Arkansas Insurance Department, the Arkansas Democrat-Gazette reports. The law caps punitive damages in malpractice lawsuits at $250,000 -- or three times the amount of compensatory damages if that amount is less than $1 million -- and requires plaintiffs to use "a medical care provider of the same specialty as the defendant" to prove negligence. According to the report, "Loss adjustment expenses and the cost of defense are still significantly higher in the medical malpractice line than others. Nothing has changed in this respect in Arkansas." The report found that in 2003 malpractice insurers paid $1.30 in costs for every $1 received in premiums. In addition, the report found that nine malpractice insurers increased their base premium rates in 2003 and that three increased their rates in 2004. Lenita Blasingame, a deputy commissioner in the state Insurance Department, said, "The reality is until we get two years down the road or maybe even three, you're not going to see a lot of change simply because of tort reform" (Bleed, Arkansas Democrat-Gazette, 11/21).

Colorado: Officials for Copic Insurance, which provides malpractice insurance to 80% of physicians in the state, recently said that premium rates for physicians will increase by 2.9% in 2006, the smallest rise in four years, the Denver Rocky Mountain News reports. Between 2003 and 2005, premium rates for Colorado physicians increased by 14% to 16% annually. Copic attributed the smaller increase in premium rates in 2006 to a 2003 state law that caps noneconomic damages in malpractice lawsuits at $300,000. Copic lobbyist George Dikeou said that the law did not affect premium rates for two years because the cap did not apply to cases in which patients were injured before the enactment of the law. Dikeou also attributed the smaller increase in premium rates in 2006 to a separate 2003 law that allows physicians to explain and apologize for medical errors. Under the law, patients can receive as much as $30,000 to cover short-term losses and later file lawsuits against physicians. Colorado physicians have had 1,505 such conversations with patients through June 30, and patients decided not to file malpractice lawsuits in 1,000 of those cases, Dikeou said (Scanlon, Denver Rocky Mountain News, 9/29).

Connecticut: Connecticut Medical Insurance, a physician-owned malpractice insurer that covers about 2,300 physicians in the state, on Tuesday announced plans to maintain current premium rates next year, the Hartford Courant reports. "CMIC will not be raising rates in 2006 because the losses and premiums have been brought back into balance. However, the underlying reasons for the increased losses and premiums have not changed," according to CMIC CEO Denise Funk. Physicians with no malpractice losses who have received malpractice insurance from CMIC for at least five years will receive premium rate credits of between 7.5% and 25%, the company said (Kalra, Hartford Courant, 9/14).


Delaware: A bill (SB 123) that awaits action in the state House Economic Development, Banking and Insurance Committee would provide subsidies to obstetricians and other physicians in high-risk specialties to help cover the cost of malpractice insurance, the Wilmington News Journal reports. The state Senate in June 2005 voted 18-3 to approve the legislation. State Insurance Commissioner Matt Denn on Wednesday said that the state would finance the subsidies, which would total $1.3 million in 2007, through a surcharge on excess reserves held by health care companies. The Delaware chapter of the American College of Obstetricians and Gynecologists recently endorsed the bill, Denn said. However, Joseph Hacker, chair of the legislative committee of the Medical Society of Delaware, said the group has concerns that the legislation would discourage additional medical liability reforms (Ratnayake, Wilmington News Journal, 3/2).

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District of Columbia: Mayor Anthony Williams (D) on Wednesday introduced the Healthcare Reform Act of 2005, which seeks to reduce the cost of malpractice insurance in city, the AP/Washington Times reports (Westley, AP/Washington Times, 5/5). The bill, submitted to the D.C. Council for consideration, would require patients who seek to file malpractice lawsuits to first obtain a "certificate of merit" from a physician to confirm that the claims have "a reasonable basis." In addition, the legislation would limit the fees that attorneys could collect in malpractice lawsuits to 40% of the first $50,000 in damages awarded and 15% of damages awarded in excess of $600,000. The bill would cap noneconomic damages in malpractice lawsuits against physicians at $250,000. The legislation also would cap noneconomic damages in lawsuits against hospitals at $500,000 per plaintiff and $1 million total. In addition, the bill would allow the D.C. insurance commissioner to require malpractice insurers to provide justification for large premium rate increases and require the city Health Department to develop a system for reporting "adverse medical events." Williams said, "If we're really serious about expanding the provision of health care in this city, we ought to adopt these reforms." However, Wayne Cohen, president of the Trial Lawyers Association of Metropolitan Washington, D.C., called the legislation "an awful bill" for patients that "protects doctors who commit the worst malpractice" (Montgomery, Washington Post, 5/5). D.C. council members said that several committees would have to approve the bill before a vote of the full council (Redding, Washington Times, 5/6).

Florida: The state Supreme Court was asked to cap the fees that trial lawyers can earn in medical malpractice cases, the Miami Herald reports (Fineout, Miami Herald, 12/1). Last November, Florida voters passed Amendment 3, which amended the state constitution to allow plaintiffs in malpractice lawsuits to retain 70% of the first $250,000 in damages awarded and 90% of damages awarded in excess of that amount. However, some attorneys who oppose the amendment have asked plaintiffs to sign waivers that allow higher fees to bypass the limits established by the measure (Kaiser Daily Health Policy Report, 7/1). A group of 54 lawyers -- many of whom have ties to the Florida Medical Association or firms that represent the association, physicians and hospitals, according to the Herald -- asked the court to require trial lawyers to follow the amendment. To do so, the court would have to change the rules of professional conduct for lawyers to limit the fees in malpractice cases. Justices "appeared deeply skeptical" about the doctors' requests, which suggest "any citizen has a right to waive a constitutional right," the Herald reports. Justices also questioned why the Florida Bar, which is responsible for regulating attorneys, has failed to propose new rules that could provide safeguards for medical malpractice plaintiffs looking for legal help. According to the Herald, "Chief Justice Barbara Pariente and Justice Charles Wells hinted that the court may order an interim rule that guarantees that medical-malpractice victims understand that they are waiving their rights" (Miami Herald, 12/1).

Georgia: Gov. Sonny Perdue (R) on Feb. 16 signed into law a bill (SB 3) that caps noneconomic damages in malpractice lawsuits at $350,000, the Atlanta Journal-Constitution reports (Rankin, Atlanta Journal-Constitution, 2/17). The legislation, sponsored by state Sen. Preston Smith (R), also establishes incentives for patients to settle malpractice lawsuits out of court, seeks to protect emergency department physicians from malpractice lawsuits and implements stricter requirements for expert witnesses who testify against physicians in malpractice lawsuits (Wyatt, AP/Macon Telegraph, 2/17). Perdue said, "This is about access to health care" (AP/Macon Telegraph, 2/17). Georgia Watch Executive Director Allison Wall, who supports regulation of malpractice insurance premium rates rather than a cap on noneconomic damages in malpractice lawsuits, said, "This is a flawed bill. This will hurt Georgia families" (Atlanta Journal-Constitution, 2/17). The state chapter of AARP also opposed the legislation.

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Hawaii: The Hawaii State Bar Association and Honolulu County Medical Society have recommended that the state enact a law to allow physicians and hospitals to apologize for medical errors without increased liability risk, the Honolulu Star-Bulletin reports. The groups plan to form a committee to examine similar laws in other states -- such as Arizona, Colorado, Florida, Illinois, Missouri, North Carolina and Oregon. The Hawaii Medical Claims Conciliation Panel has offered to help the two groups draft the proposed legislation (Altonn, Honolulu Star-Bulletin, 10/31).

Idaho: State lawmakers on Feb. 17 voted to send a bill to the House that would make health care workers' "expressions of apology, condolence and sympathy," as well as explanations of what went wrong, inadmissible in court under certain circumstances in medical malpractice cases, the AP/Spokane Spokesman-Review reports. Ken McClure, a lobbyist for the Idaho Medical Association, said, "We are trying to use the law in a way that will allow physicians and patients to speak to one another more freely." Barbara Jorden, a lobbyist for the Idaho Trial Lawyers' Association, said her group largely supports the bill but believes that explanations should be permissible in court (Wallace Allen, AP/Spokane Spokesman-Review, 2/21).

Illinois: The Illinois Division of Insurance on Tuesday ordered ISMIE Mutual Insurance, which controls more than 60% of the state's market for medical malpractice insurance, to cut its premiums by 3.5% for the fiscal 2006-2007 policy year, the St. Louis Post-Dispatch reports. The order marks the first time regulators have employed a provision in a law enacted last year that gives state officials the authority to regulate the insurance industry more closely, the Post-Dispatch reports. The law also caps noneconomic damages in malpractice cases to $500,000 or $1 million when the plaintiff is suing a hospital. Harold Jensen, board chair for ISMIE, on Tuesday in a statement said the order for a 3.5% rate reduction was "arbitrary." He added, "This insurer will continue to determine rates based on loss experience because we will not jeopardize the company's financial viability." ISMIE is the insurance arm of the Illinois State Medical Society (Lamb, St. Louis Post-Dispatch, 3/14).

Indiana: The state House Judiciary Committee last week discussed a bill under which plaintiffs could not submit apologies from physicians as evidence in malpractice lawsuits, the Indianapolis Star reports. The legislation would apply to malpractice lawsuits and most other cases that allege injuries. Under current Indiana law, plaintiffs can submit apologies as evidence in most lawsuits. Committee Chair Ralph Foley (R), who sponsored the bill, said that an apology "takes some of the bitterness away in litigation." At a Jan. 5 hearing on the bill, Warren Mathies, legislative director of the Indiana Trial Lawyers Association, said that the issue is "better handled at the judicial branch, at the trial level, rather than a one-size-fits-all approach." He added, "Lawyers for both sides and the judge are best equipped in doing what's right in those circumstances." The committee referred the bill to a four-member subcommittee to work on the language. Some committee members said the legislation should not apply to apologies that admit fault (Hafkin, Indianapolis Star, 1/6).

Iowa: The Iowa House on Wednesday voted 77-22 to approve a bill (HB 2716) under which plaintiffs could not submit apologies from physicians as evidence in malpractice lawsuits, the Des Moines Register reports. According to supporters, the legislation would reduce the number of malpractice lawsuits "under the theory that hearing an apology is often enough to keep some people from seeking legal recourse," the Register reports. State Rep. Kraig Paulsen (R) said that the legislation would allow physicians and other health care professionals to "have a bedside manner where they are able to express some sympathy when an outcome is adverse, regardless of whether there is negligence involved." However, opponents said that the legislation is inadequate. State Rep. Don Shoultz (D) said, "The beneficial results of a good medical malpractice system is that when people are injured, they are able to be made whole again, and this doesn't work toward that. When you apologize, it doesn't make anybody whole." According to the Iowa Medical Society, studies have found that apologies from physicians have reduced the number of malpractice lawsuits (Higgins, Des Moines Register, 3/23).

Kentucky: State Rep. Bob DeWeese (R) on Monday proposed a constitutional amendment that would create a review committee to judge the merit of medical malpractice lawsuits, increase restrictions on the statute of limitations for certain lawsuits and establish standards for expert witnesses who testify in court, the Owensboro Messenger-Inquirer reports (Covington, Owensboro Messenger-Inquirer, 3/14). DeWeese said he would add his plan as a "compromise" amendment to a malpractice bill (HB 700) by state Rep. Rob Wilkey (D), but Wilkey said he had not discussed the proposal with DeWeese (Biesk, AP/Lexington Herald-Leader, 3/14). Wilkey's proposal would screen malpractice lawsuits but would not call for a constitutional amendment. Democratic and Republican leaders disagree over the need for a constitutional amendment in order to establish a review committee. DeWeese's proposed amendment also would undo proposals in Wilkey's bill to create a state-run malpractice insurance carrier and prevent insurers from using investment setbacks to justify rate increases. DeWeese's amendment does not state who would serve as committee members on review panels, but DeWeese said the panels would include doctors, lawyers and court representatives. The Kentucky Medical Association supports the amendment, which would require approval from Kentucky voters. However, Wilkey said, "How can you possibly have a compromise when you haven't even talked to the bill sponsor?" (Howington, Louisville Courier-Journal, 3/14).

Maryland: Republican leaders in the Maryland legislature say a 2% HMO tax aimed at defraying medical malpractice premiums in the state will be passed on to consumers in the form of higher premiums, the Washington Times reports (Miller, Washington Times, 12/26). The tax is part of malpractice reform legislation Gov. Robert Ehrlich (R) vetoed in January 2005; the state General Assembly subsequently voted to override the veto (Kaiser Daily Health Policy Report, 1/28/05). The tax subsidizes payments to malpractice insurers with the aim of limiting increases in malpractice premiums. CareFirst BlueChoice -- the largest HMO in Maryland, with 366,000 members -- said recently it will increase premiums to pay for the tax. Optimum Choice, Aetna Health, United Healthcare Mid-Atlantic and three smaller HMOs also said they will increase premiums to pay for the tax. The Medical Mutual Liability Insurance Society of Maryland -- the state's largest malpractice insurer -- collected more than $27 million in 2005 through a subsidy funded by the HMO tax. Medical Mutual has not proposed a rate increase for 2006; the insurer has increased rates 66.8% since 2003. James McMahan, acting commissioner of Medical Mutual, said it is too soon to know if the subsidy program will ultimately reduce rates. State Sen. Andrew Harris (R) said, "Unfortunately, patients in Maryland ... are the only ones who will pay for this costly lesson in basic common-sense economics." However, state House Speaker Michael Busch (D) said, "It has worked. Those who voted against it are grasping at any straw or vine to support their position" (Washington Times, 12/26/05).

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Massachusetts: Physicians in the Boston area "are missing cancer diagnoses at a troubling rate," a trend that has led to an increase in the number of malpractice lawsuits filed against them, according to attorneys for patients and physicians in such cases, the Boston Herald reports. Currently, about 33% of malpractice lawsuits in Massachusetts allege missed diagnoses, compared with about 25% 10 years earlier, according to malpractice insurer CRICO/RMF. Most of the missed diagnoses involve cancer, the Herald reports. Attorney Robert Gabler said that Boston has "some of the best hospitals in the world and some of the very best are making some of the very worst mistakes" (Mulvihill/Fargen, Boston Herald, 3/3).

Minnesota: The state House Health Policy and Finance Committee on Tuesday voted 9-6 to approve a medical liability reform bill that would cap noneconomic and punitive damages at $250,000 each in cases that involve obstetric or emergency department procedures, the Minneapolis Star Tribune reports. In addition, the legislation would cap plaintiff attorney fees in malpractice lawsuits and award punitive damages to a state health insurance fund. The bill moves to the state House Civil Law and Elections Committee for consideration. State Rep. Brad Finstad (R) said, "Reforming our professional liability and malpractice system now is crucial. We need to act now before it becomes a crisis." However, state Rep. Paul Thissen (D) said that the bill would only "pick winners and losers." Thissen added that Minnesota has some of the lowest malpractice insurance premiums in the nation (Defiebre, Minneapolis Star Tribune, 3/9).

Mississippi: The Medical Assurance Company of Mississippi will reduce malpractice insurance premium rates by 5% in 2006, state Insurance Commissioner George Dale announced on Monday, the AP/Jackson Clarion-Ledger reports. MACM, which provides malpractice insurance for about 70% of physicians in the state, also will refund 10% of the premiums paid by physicians in 2005, provided that the finances of the company continue to improve. MACM will base the refund on the first $1 million of malpractice insurance for physicians covered by the company as of Dec. 15, 2005. "I am pleased that MACM is in a financial position to take these steps," Dale said, adding, "This is further proof that recent reforms continue to show that Mississippi can maintain a fair and equitable marketplace for those companies who write medical malpractice insurance." The state in 2004 enacted limits on civil lawsuits. MACM CEO Michael Houpt said, "As we have said many times, it has never been our goal to provide the least expensive medical liability insurance, nor was it our goal to see how much wealth we could accumulate. Our mission has always been to make coverage available at a rate that allowed us to be fiscally secure in the long term" (AP/Jackson Clarion-Ledger, 10/11).

Missouri: The state Senate on Thursday by voice vote passed a bill (SB 905) that would require malpractice insurers to obtain approval from the state insurance director before they increase premium rates, the AP/Kansas City Star reports. In addition, the legislation would require malpractice insurers to report to the state Department of Insurance information on premium rates, losses and potential for claims and would increase penalties for those who failed to report the information. The department would use the information to publish a market rate for different forms of risk and a comparison of base premium rates charged by malpractice insurers. The bill also would require the state insurance director to ensure that malpractice insurers comprised in large part of self-insured physicians charge adequate premium rates to maintain solvency. The legislation requires approval in a second vote by the state Senate to move to the state House for consideration (Wiese, AP/Kansas City Star, 3/30).

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New Hampshire: The two largest malpractice insurers in New Hampshire hold more than 60% of the market, and the eight largest hold more than 82% of the market, according to David Withers, a state property casualty actuary, the Manchester Union Leader reports. Withers, who testified on Monday at a state Department of Insurance hearing, said that malpractice insurance premium rates for the Medical Mutual Insurance Company of Maine increased by 80% between January 1999 and March 2005. Over the same period, malpractice insurance premium rates for the New Hampshire Joint Underwriting Association increased by 30% and premium rates for ProMutual Group ProSelect Insurance increased by 31.1%, Withers said. Hospital administrators and insurance industry consultants also testified at the hearing. According to the Union Leader, the hearing "could be a preliminary step" toward a decision by New Hampshire Insurance Commissioner Roger Sevigny that the malpractice insurance market is noncompetitive, a move that would allow him to "review rates before they are put in place and disapprove rates he finds unreasonable." At the hearing, Sevigny said that Withers had presented evidence of "all of the factors that ... would cause me to declare the market noncompetitive" (Manchester Union Leader, 7/19).

New Jersey: A state judge on Wednesday rejected a challenge by the New Jersey State Bar Association over a $75 annual fee that attorneys must pay to help cover the increased cost of malpractice insurance for physicians in high-risk specialties, the Newark Star-Ledger reports. According to the association, not all attorneys in the state should have to pay the fee because only a small number argue malpractice cases. In a 54-page decision, state Superior Court Judge Thomas Lyons wrote that, although attorneys might not have caused the increased cost of malpractice insurance, the fee is constitutional because of ties between attorneys and the medical community. "The financial interdependence between the bar and a stable health care system is apparent," he wrote. The association might appeal the decision (Coscarelli, Newark Star-Ledger, 6/16).

Nevada: A state law approved by voters in 2004 that caps noneconomic damages in medical malpractice cases at $350,000 has contributed to a reduction in the number of cases filed from an average of 330 per year to 160 in 2005, the Las Vegas Sun reports. However, most "insurance companies haven't significantly lowered their rates, fearing the courts will overturn the law," and many doctors "have seen either minor cuts in what were already high premiums or smaller annual increases," the Sun reports. Larry Matheis, executive director of the Nevada State Medical Association, said the law must survive a court challenge before physicians "see real premium decreases and a number of new carriers on the market." Some trial attorneys said they have been filing fewer lawsuits because the cap is too low to justify the cost of preparing a case (Ryan, Las Vegas Sun, 3/15).

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New York: The cost of medical malpractice insurance premiums in New York City, Westchester County and on Long Island has increased by almost 150% since 1999, creating financial constraints that have limited patient access to specialties such as obstetrics and gynecology and making New York a "crisis state" for physicians, according to a report released on Wednesday by the Greater New York Hospital Association, the New York Times reports. GNYHA -- which represents hospitals in New York, New Jersey, Connecticut and Rhode Island -- said that the report focused on 34 hospitals in the New York City area. According to the report, New York City-area hospitals on average have experienced annual 27% increases in the cost of malpractice insurance premiums over the past five years. The report found that the cost of malpractice insurance premiums for New York City-area hospitals increased by 51% in 2004 and 23% in 2003, compared with 16% in 2004 and 8% in 2003 for hospitals nationwide. The report attributed the increases in the cost of malpractice insurance premiums for those hospitals to high jury awards in malpractice lawsuits and structural changes in the insurance industry. "The increasing cost of malpractice insurance has become a pressing burden for New York's financially fragile hospitals," Kenneth Raske, president of the association, said. The association plans to use the report to lobby state lawmakers to pass medical liability reform legislation. However, according to Robert Hartwig, chief economist for the Insurance Information Institute, "To be fair, the medical profession has to pay closer attention to some of its own. There are good doctors and there are bad doctors" (Lueck, New York Times, 1/6).

North Carolina: State Rep. Bill Faison (D) on April 14 introduced a bill (HB 1229) that would make public more information about malpractice settlements, the Raleigh News & Observer reports. The legislation would require the 12-member North Carolina Medical Board to make public all malpractice settlements, although the names of most physicians would remain anonymous. The bill would require the board to release the names of physicians who have reached more than five malpractice settlements valued at more than $100,000 over a 10-year period. In addition, the legislation would revise the selection process for board members. Under the bill, licensed physicians in the state would elect the seven physician members of the board. The North Carolina Medical Society currently appoints those seven board members (Collins, Raleigh News & Observer, 4/15).

Ohio: The state Medical Malpractice Commission last month issued its final recommendations, saying that Ohio should establish a statewide patient-safety center and create a court dedicated specifically to malpractice lawsuits. The safety center would be a private-government partnership that would coordinate patient-safety efforts, collect information on medical errors and establish a pilot program for the dedicated court. The commission also recommended that the state not change its system for reviewing insurers' rates but should instead establish programs to forgive doctors' educational loans and provide incentives for doctors in high-risk specialties to practice in Ohio. The commission said that a $12 million fund earmarked by the state Legislature last year for new malpractice initiatives should be used for other purposes. The recommendations will be presented to state lawmakers and the governor (Brown, Cleveland Plain Dealer, 4/28).

Oklahoma: The state Senate Judiciary Committee on Tuesday approved a tort reform bill supported by Gov. Brad Henry (D) that would cap noneconomic damages in malpractice lawsuits at $300,000, regardless of the number of defendants, the Daily Oklahoman reports. State Senate Republicans, who have introduced a rival bill, oppose the legislation. State Senate Republican leader Glenn Coffee said, "I have serious doubts whether Senate Democrats will allow meaningful reform to pass in 2005, which means we'll have to be right back here next year talking about this issue again" (Greiner, Daily Oklahoman, 4/6).

Oregon: Kaiser Permanente Northwest and Oregon Health & Science University last month agreed to send records on past malpractice claims against their physicians to the Oregon Board of Medical Examiners, the Oregonian reports. OBME uses records on malpractice claims to help identify "potentially dangerous physicians," according to the Oregonian. Between 1991 and 2003, KPN did not report malpractice claims to the state on the grounds that a 1991 revision to Oregon law exempted the HMO from the practice, a position disputed by the state Department of Consumer and Business Services' Insurance Division. OHSU began to report malpractice claims in September for the first time since 1987 (Colburn, Oregonian, 11/17). KPN and OHSU agreed to send records on malpractice claims to the state after the Oregonian last month reported that a former Oregon surgeon, who was disciplined by the state medical board for negligence, later obtained a position in Australia, where he faces an investigation for 13 patient deaths. KPN and OHSU, the surgeon's former employers, did not report the malpractice claims to the state for more than 10 years (Kaiser Daily Health Policy Report, 11/11).

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Pennsylvania: The Pittsburgh Post-Gazette on Sunday examined how neurosurgeons in the state "cite high malpractice insurance costs as one reason why some decide to leave Pennsylvania," a trend that has contributed to a statewide shortage. According to Daniel Bursick, past president of the Pennsylvania Neurological Society, the number of neurosurgeons in Pennsylvania has decreased by about 25% since the late 1990s, when more than 200 practiced in the state. Bursick cited other factors -- such as compensation and regulatory requirements -- as contributors to the decrease, but added that "what really drives people over the edge is malpractice." The October 2005 newsletter of the Medical Liability Monitor said that Pennsylvania physicians pay some of the highest malpractice insurance premiums in the nation, according to the Post-Gazette (Fahy, Pittsburgh Post-Gazette, 3/26).

Rhode Island: Members of the Rhode Island Medical Society and the Hospital Association of Rhode Island have said that the Rhode Island Trial Lawyers Association has sought to block a malpractice reform bill supported by physicians and hospitals, "apparently dooming for this year any legislation" to address the issue, the Providence Journal reports. State General Assembly leaders had asked the groups to reach a compromise on the issue. RITLA President Joyce Faraone said that the groups have met several times and that RITLA has not sought to block the legislation. The bill supported by physicians and hospitals would a reduce the 12% interest rate that accumulates on malpractice judgments during the litigation process. The bill also would require an expert to certify that malpractice lawsuits have merit and would require plaintiffs to file lawsuits within one year of the time that they become aware of alleged malpractice. However, RITLA supports a bill that would limit malpractice insurance premium rates for physicians in high-risk specialties. The bill also would require malpractice insurers to base premium rates on "firm data" and disclose their expenditures (Freyer, Providence Journal, 6/29).

South Carolina: State lawmakers on Tuesday began to consider new malpractice reform legislation only months after the enactment of a bill that capped noneconomic damages in malpractice lawsuits at $350,000 for an individual defendant and $1.05 million for multiple defendants. At the first of four meetings, a state Senate subcommittee discussed "I'm sorry" legislation, which would allow physicians to apologize for medical errors without concern that patients could use the apologies as evidence in malpractice lawsuits. About 17 other states have enacted such laws, according to Doug Wojcieszak, a spokesperson for Sorry Works. The subcommittee in the three future meetings will address other malpractice issues, such as the use of alternative methods to resolve lawsuits and the removal of barriers that prevent the discussion of patient care among health care providers (Collins, AP/Charleston Post and Courier, 8/17).

Tennessee: The state House Judiciary Subcommittee on Civil Practice and Procedure this week voted 3-2 to defeat a bill that would have capped noneconomic damages in malpractice lawsuits at $250,000 and placed new limits on attorney fees in such cases, the Knoxville News-Sentinel reports. State Rep. Rob Briley (D), who chairs the subcommittee and also chaired a legislative study on medical liability, said claims that the state faces a malpractice insurance crisis because of lawsuits are "totally subjective," adding that the legislation would unfairly penalize patients who experience injuries because of malpractice. Briley also said that the subcommittee would not reconsider the legislation this year. According to the News-Sentinel, similar bills have failed for the past four years in the state Legislature (Humphrey, Knoxville News-Sentinel, 3/29).

Texas: Many state residents who seek to file malpractice lawsuits cannot find attorneys to represent them because of a cap on noneconomic damages in such cases that took effect in 2003, the Austin American-Statesman, reports (Dexheimer, Austin American-Statesman, 3/26). In September 2003, Texas voters approved Proposition 12, a ballot measure that amended the state constitution to allow state lawmakers to pass legislation to cap damages in malpractice lawsuits. Texas in June 2003 enacted a law that caps noneconomic damages in malpractice lawsuits at $250,000 for physicians, $250,000 for hospitals, and $250,000 for nursing homes and other health care facilities. The law caps total noneconomic damages in such cases at $750,000 per plaintiff; the law does not cap economic damages. Passage of Proposition 12 ensures that the law can survive a court challenge (Kaiser Daily Health Policy Report, 9/28/04). Malpractice lawsuits can cost about $100,000 to prepare, and, as a result of the caps on noneconomic damages in such cases, many attorneys only take cases in which "a patient or survivors have suffered a large economic loss," a trend that patient advocates maintain has "exacted a high price, particularly among the very young and the very old," according the American-Statesman (Austin American-Statesman, 3/26).

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Utah: State Sen. Peter Knudson (R) is developing legislation that would prevent volunteer medical professionals who receive some compensation for providing charity care services from being sued in many cases, the Salt Lake Tribune reports. Utah's current law protects only uncompensated medical workers providing charity care from being sued for negligence. Such volunteers face liability only if their care is "grossly negligent" or "willful and wanton." Knudson would like to expand the legal protection to include medical professionals who receive a salary or reimbursements for expenses. He said he believes more medical professionals would volunteer if they did not have to worry about liability (Hamilton, Salt Lake Tribune, 12/29/05).

Vermont:The state Senate on Thursday unanimously passed a bill under which plaintiffs could not submit apologies from physicians as evidence in malpractice lawsuits, the Burlington Free Press reports. According to the Free Press, a "genuine apology" from a physician might alleviate the patient's anger over a mistake and might "open the door to a negotiated settlement rather than an expensive court battle over terms" when appropriate (Burlington Free Press, 3/20).

Virginia: About three-fourths of malpractice lawsuits filed in Virginia over the past three years resulted in no payments to plaintiffs, according to data released this week by the state Bureau of Insurance, the Richmond Times-Dispatch reports. Over the past three years, malpractice lawsuits resulted in $70 million in payments to plaintiffs annually, with more than 1,200 claims filed against physicians annually. The average malpractice settlement among all physicians totaled about $220,000, and the average settlement among obstetricians and general surgeons totaled $383,500 and $391,000, respectively. Over the past three years, malpractice insurers paid $221 million to plaintiffs, although 60% of payments totaled less than $600,000 and only 33 totaled more than $1 million. According to the Times-Dispatch, observers disagree about whether the data indicate that "Virginia physicians are being overrun with frivolous claims or that conservative Virginia juries are listening more to the doctor's defense than the patient" (McKelway/Hickey, Richmond Times-Dispatch, 11/2).

Washington, D.C. : Roughly 100 doctors, patients' rights advocates and observers on Thursday gathered outside City Hall to protest high insurance costs related to malpractice suits, the Washington Times reports. The rally was held just before the council's Judiciary Committee began a hearing on a bill by Mayor Anthony Williams, who addressed the group at the rally. Williams' bill, which was introduced last year, would limit some jury awards for pain and suffering to $250,000 against physicians and $500,000 against hospitals. The bill "died" last year and since has received little support from council members, according to the Times. Peter Lavine, chair of the Medical Society of the District of Columbia, said many of the group's members have said they will leave the city if insurance costs do not go down. Two District council members have submitted bills that oppose Williams' plan (Redding, Washington Times, 12/2).

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Washington state: The state House on Tuesday voted 82-15 to approve a malpractice bill unanimously passed last month by the state Senate, the AP/Seattle Times reports (Woodward, AP/Seattle Times, 3/1). The legislation would make apologies to patients from health care providers inadmissible in court and would require attorneys to file certificates of merit when they file lawsuits against providers. In addition, the bill would cap noneconomic damages in malpractice lawsuits that are resolved in arbitration, rather than at trial, at $1 million. The legislation would allow the state insurance commissioner to reject proposed increases in malpractice insurance premium rates and collect data on malpractice payouts for analysis. Under the bill, state residents who report health care providers for unprofessional conduct would receive immunity, and hospitals would have to report serious patient injuries to the state. The legislation also would require the state board that disciplines physicians to include members of the public (Kaiser Daily Health Policy Report, 2/24). A spokesperson for Gov. Christine Gregoire (D) said that the governor will sign the bill into law by Monday (Shannon/Wilson, Olympian, 3/1).

West Virginia: Insurance Commissioner Jane Cline told state lawmakers that medical malpractice insurance companies have started recording a profit in the state after the Legislature passed several limits on malpractice lawsuits, AP/Charleston Daily Mail reports. Cline's office examined financial documents from five insurers that provide 80% of the state's malpractice coverage. They found that for every dollar insurers gathered from West Virginia policy holders in 2004, they spent 96 cents on claims and expenses, below the national average of $1.08. In addition, insurers spent 59 cents for every dollar of income in West Virginia. Cline said that increased operating profits allowed at least three companies to reduce the rates they charge doctors. She also said the number of malpractice claims fell from 379 in 2001 to 223 in 2004 with about 39% being dismissed (Messina, AP/Charleston Daily Mail, 12/12).

Wisconsin: Gov. Jim Doyle (D) on Wednesday signed a bill that caps noneconomic damages in malpractice lawsuits at $750,000, the Milwaukee Journal Sentinel reports. Supporters maintain that the law will help stabilize the state medical community. State Rep. Curt Gielow (R), who co-sponsored the legislation, said, "It's a fine balance between fairness to the injured plaintiff and fairness to the overall public that needs access to health care." However, Dan Rottier, president of the Wisconsin Academy of Trial Lawyers, said that the law "takes away the rights of the most severely injured to be treated equally under the law." Opponents predict that the law will face court challenges (Forster, Milwaukee Journal Sentinel, 3/22).

Wyoming: More than 250 Wyoming physicians have expressed interest in serving on a state panel that would review medical malpractice cases before they go to trial, according to the Wyoming Board of Medicine, the AP/Billings Gazette reports. However, only 56 lawyers have expressed interest in the serving on the panel, according to the Wyoming State Bar. The panel, created by the state Legislature earlier this year, will include two physicians, two attorneys and one other member. Marcia Shanor, executive director of the Wyoming Trial Lawyers Association, said a session at the group's upcoming convention in Cheyenne might increase the interest in the medical review panel (AP/Billings Gazette, 5/27).

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Tort Reform Must Include Steps To Prevent Medical Injury

Stephen C. Schoenbaum, MD,

Senior Vice-President, Commonwealth Fund

Annals of Internal Medicine, 2004.

In the current malpractice insurance crisis, physicians have focused their advocacy and energy primarily on rapidly increasing liability premiums, problems in access to care and demands for legal "reform," especially caps on damages.

An even more important focus, however, is prevention of injury and improvement of patient safety. Physicians largely control patient care and can play a critical role in systematically reducing injury. “Reforms" should go beyond liability issues; they should also harness and enhance physicians' ability to act.

More visible efforts by physicians to reduce harm, better communication with patients and others, and true evidence of improved patient safety should reduce patient anger and litigiousness. Individually and collectively, physicians can and should ensure that "doing no harm" comes first in the malpractice debate.

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Last update on: 3/31/06




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