Medical Liability Reform Gets Another Chance

by Leona Egeland Siadek, Vice President, Government Relations

The Bush White House will continue to support medical liability reform over the next term, with more help in Congress as a result of the November 2 General Election. The U.S. Senate gained four Republicans, now with a total of 55 Republicans, 44 Democrats, and one Independent. The U.S. House of Representatives gained two medical liability reform supporters, now with a total of 231 Republicans, 201 Democrats, and one Independent. We might see two more supporters, depending on the Louisiana runoff election on December 14.

There are several Republicans in both houses who do not support a federal law governing medical liability, and a few who do not support caps on noneconomic damages without exceptions. If President Bush will help convince his party members to vote on medical liability reform measures or if the half dozen moderate-to-conservative Democrats will consider voting for the policy rather than standing on partisanship, we may see passage of effective reform in the next few years.

State Ballot Measures

Voters in four states considered measures on medical liability:

The big winner this year is Nevada. Ballot Question 3, which passed with 59 percent approval from the state’s voters, provides for a solid cap on noneconomic damages of $350,000.

Voters defeated Ballot Questions 4 and 5, two measures put forward by personal injury lawyers that attempted to mislead voters into believing that they were voting for lower insurance rates and an end to frivolous lawsuits.

Florida’s measure to amend the state constitution to limit attorneys’ contingency fees passed by a margin of 64 percent.

Wyoming passed Measure C, which allows the legislature to enact laws requiring alternative dispute resolution or a medical screening panel. Despite passing, there will be a recount on Measure C. Unfortunately, Measure D lost. It would have allowed the legislature to enact caps on damages.

Oregon also tried to limit recoverable damages with Measure 35. It was defeated 50.5 percent to 49.5 percent. Oregon will not pursue a recount.

Federal Legislation

Two bills reported in detail in the third quarter Advocateare still pending:

S. 720, the Patient Safety and Quality Improvement Act of 2004, is designed to establish a way for health care professionals to confidentially report errors in patient care without legal repercussions. S. 720 was reconciled with H.R. 663. On July 22, 2004, the full Senate passed H.R. 663, which incorporates the provisions of S. 720. The vote was unanimous, and the measure moved to conference committee. It is uncertain whether any action will be taken during the short late-November lame-duck session.

H.R. 4571, the Lawsuit Abuse Reduction Act of 2004, proposes holding personal injury lawyers accountable to basic standards by mandating sanctions against those who abuse the system. It was passed by the House of Representatives on September 15, 2004, by a vote of 229 to 174 and is currently before the U.S. Senate.

On October 14, HHS Secretary Tommy Thompson announced the Free Clinics Federal Tort Claims Act (FTCA) Medical Malpractice Program. This program, which was not funded until this year, was part of the HIPAA legislation of 1996. Section 194 extends medical malpractice coverage to volunteer health care professionals working in free clinics. There will be no cost to free clinics, but each clinic must meet certain criteria in order to participate.

State Actions

District of Columbia Mayor Anthony Williams submitted his plan for medical liability reform. The measure calls for a cap of $250,000 on noneconomic damage awards for doctors and a cap of $500,000 for health care institutions. The plan also includes periodic payments for future economic damages, calls for the elimination of joint and several liability, allows the introduction of collateral source payments, and caps attorney fees. Prospects for passage by the current council are good.

Michigan passed H.B. 5338 to revise the procedure for filing an affidavit of merit for a medical malpractice claim. The state senate has until the end of December to consider the bill before final adjournment.

In Massachusetts, the state budget was signed. It contains Section 330, which creates a special task force on medical malpractice insurance. The task force will deliberate and file a report for the 2005 legislative session.

Pennsylvania did not pass its pending legislation to place a measure on the ballot that would amend the state constitution to allow caps on awards. Should a similar bill pass next year, the next window of opportunity for a public vote would be the 2007 election.