The two major medical liability crises in the 1970s and late 1990s/early 2000s have faded from memory, and the laws that were enacted to protect patient access to care are under attack. As philosopher George Santayana famously observed in his 1905 book The Life of Reason, “Those who cannot remember the past are condemned to repeat it.”
In 2022, California’s seminal medical liability tort reform law, MICRA, was challenged. In 2023, Nevada’s medical tort reform law came under similar assault. In 2024, the fight moved to Colorado. If it were not for the valiant efforts of each state’s healthcare coalitions, these laws would have been eliminated entirely. All three states avoided catastrophe through negotiated legislative solutions that protected most medical liability tort reforms in exchange for increasing the amounts that plaintiffs and their attorneys may be awarded for intangible and subjective noneconomic damages.
The Iowa legislature—which recognized that hard caps are essential to protecting access to healthcare—changed its medical liability limits in 2023. This was because the exception to the state’s cap on damages for claims involving catastrophic injuries had become the norm, rendering its damage caps ineffective. To help rein in the record-breaking awards that had become common in recent years, Iowa’s solution involved adding hard noneconomic damage caps to the catastrophic exception.
2024 Legislation
In 2024, The Doctors Company has continued to actively advocate on behalf of healthcare practitioners and their patients. Here are some examples of recent activities to counter legislative attacks on medical and general liability reforms:
Colorado HB 1472. When personal injury trial lawyers filed November 2024 ballot measures that would have eliminated almost all noneconomic damages caps in the state and gutted healthcare peer review by opening it to evidentiary discovery, a broad coalition—including healthcare providers and The Doctors Company—opposed the measures. At the last minute, the legislature agreed to and passed a bipartisan compromise to avoid completely eliminating the caps at the ballot box. In this era of skyrocketing jury awards, the loss of caps on noneconomic damages would have had a far-reaching impact on access to healthcare, and the loss of peer review would have jeopardized the practice of good medicine for all Coloradans. Here are the details of the compromise:
- For medical malpractice cases in which no wrongful death claim is alleged, the noneconomic damages cap will increase from $300,000 to $875,000, phased in over five years. Beginning in 2030, the cap will be adjusted for inflation every two years.
- For medical malpractice in which wrongful death is alleged, a new noneconomic damages cap was enacted that steps up over five years and culminates at $1,575,000. Following the phase-in period, this new cap will also be adjusted for inflation every two years.
- The total “soft” cap (that is, a cap with exceptions that is routinely set aside) on both economic and noneconomic damages in medical negligence cases was adjusted to remain viable under the higher noneconomic damages caps. The new soft, or easily pierced, cap will be the greater of $1 million or 125 percent of the noneconomic damages awarded in a medical malpractice case.
- As part of a compromise, limited retroactivity was agreed upon in non-wrongful death medical negligence claims arising after January 1, 2024.
- A limited expansion of plaintiffs who may bring a wrongful death claim was an additional compromise. The deceased’s siblings or the deceased’s siblings’ heirs (if the deceased’s siblings are no longer alive) may file a wrongful death action if the deceased has no other living heirs and beneficiaries.
- For non-medical malpractice civil actions, the law increased the cap on noneconomic damages to $1.5 million. Beginning January 1, 2028, the cap will be adjusted for inflation every two years.
- For non-medical malpractice wrongful death actions, the law increased the noneconomic damages cap to $2.125 million. Beginning January 1, 2028, the cap will be adjusted for inflation every two years.
Florida SB 248. This legislation sought to expand the number of plaintiffs in a wrongful death claim. A broad coalition that included The Doctors Company sought amendments to reinstate Florida’s cap on noneconomic damages in medical liability actions, which had been previously declared unconstitutional. Ultimately, the bill—which had both bipartisan support and bipartisan opposition—failed to gain traction.
Maryland HB 83. Although an exemption was achieved for claims related to medical malpractice, HB 83 would have repealed the state’s cap on noneconomic damages in civil actions for personal injury or wrongful death. Fortunately, the bill was defeated. This legislation is part of the broad attack on liability reforms.
Mississippi HB 950. Under current Mississippi law, noneconomic damages are limited to a $500,000 cap in medical malpractice actions and a $1 million cap in all other actions. HB 950 would have created a “catastrophic injury” exception permitting $3 million for noneconomic damages. This attempt was also defeated.
New Hampshire SB 462. This legislation originally sought to eliminate the $150,000 cap on loss of comfort and companionship damages awarded to a surviving spouse in wrongful death cases. It would have also eliminated the $50,000 cap on loss of familial relationship damages that may be awarded to the minor child or children of a deceased parent. Following fierce opposition, the bill was amended to increase the loss-of-spousal-comfort cap from $150,000 to $500,000 and increase the familial relationship damages cap of $50,000 to $300,000 for minor children. The healthcare coalition asked the governor to veto the increases. Despite this request, the bill was signed into law. It becomes effective January 1, 2025.
New York. The Grieving Families Act, which is intended to expand the pool of beneficiaries and categories of recoverable damages in wrongful death claims, was incorporated into the New York Senate’s proposed annual state budget. After strenuous advocacy, the provision was removed from the budget. Unfortunately, additional legislation, A9232B, has passed both houses of the legislature. We urged the governor to veto this harmful bill that would exponentially increase liability costs for all healthcare practitioners and facilities.
Virginia SB 493. This legislation would have removed the state’s cap on damages in cases in which the alleged medical malpractice involved a patient 10 years of age or under. A broad healthcare coalition, including The Doctors Company and the Virginia Medical Society, opposed the bill, and it was defeated. It is expected that legislation to eliminate Virginia’s damage caps will be introduced in 2025.
More Information
The Doctors Company was founded in 1976 as a result of the medical liability crisis. With support from members, our dedicated Government Relations team reaffirms our commitment to protect and defend outstanding healthcare and access to care for all patients. Visit our Legislative, Regulatory, and Judicial Advocacy page to learn more about advocacy 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.