Battle over medical liability reform continues in many states

February 21, 2013

In several states, legislative attempts at medical liability reform are taking place.

For decades, various approaches to medical liability reform have been proposed, debated, and implemented throughout the country. One of the more familiar reform approaches has been caps on non-economic damages, and a large number of states have laws capping such awards.

These caps made headlines last year when the Kansas Supreme Court and Missouri Supreme Court ruled on constitutional challenges to their states’ caps on non-economic damages. The Kansas Supreme Court upheld its state’s $250,000 cap on non-economic damages, while the Missouri Supreme Court held that Missouri’s $350,000 cap on non-economic damages violated the Missouri Constitution’s right to trial by jury. In response to this ruling, legislators in Missouri have introduced bills this year that would create a statutory cause of action for medical liability claims, taking such actions out of the common law, and a resolution calling for the submission of a constitutional amendment to Missouri voters regarding caps on non-economic damages.

In Indiana, Maryland, Montana, New Hampshire, and New Mexico, bills have been introduced this session that would require the prevailing party in certain cases, including medical liability cases, to be awarded compensation for reasonable attorney’s fees incurred as a result of the litigation. In Hawaii, New York, and Pennsylvania, bills have been introduced that would prevent the introduction of evidence concerning an apology or expression of regret that a physician may have conveyed to his or her patient.

More ambitious attempts at medical liability reform are also being introduced. In Connecticut, for example, where a number of bills addressing medical liability have been introduced this session, two bills-SB 449 and SB 451-seek to require that all medical liability cases be submitted to mandatory arbitration. In Pennsylvania, HB 74 would create a Medical Professional Liability Court with its own appellate division. In addition, bills introduced in Georgia, Oregon, and Vermont would create new dispute resolution systems for injuries claimed to be the result of medical treatment.

In Oregon, HB 2217 would create a system that requires health care facilities (or providers) and patients to engage in discussions, and under certain circumstances, mediation regarding what the bill describes as adverse health care incidents. SB 141 in Georgia seeks to establish the "Patient Injury Act," which would create an alternative to medical liability litigation by instituting an administrative process through which medical injury claims are reviewed and a state-administered fund out of which patients found to have suffered an injury through medical treatment are compensated. The bill introduced in Vermont, HB 35, is similar and would set up a no-fault compensation system for medical liability claims, but only for claims brought against primary care physicians. Specialty physicians would not be a part of this system, according to the bill.

These bills concerning medical liability reform, especially the ones in Georgia and Vermont, demonstrate how important it is for physicians to stay abreast of health policy issues and to be engaged in state politics.

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