3 states pass tort reform; others still waiting

State lawmakers in most cases aren't agreeing to the doctor-sought $250,000 noneconomic damages cap in medical malpractice lawsuits. But as numerous state legislatures wrapped up sessions in recent weeks, several made other strides toward reforming the tort system physicians say is driving up insurance costs.

New Jersey, Ohio and Oklahoma passed bills. Tightening expert witness requirements and creating funds to help offset rising medical liability insurance premiums are among the adopted reforms. Oklahoma doctors came up the biggest winners with a $300,000 noneconomic damages cap that applies per case.

In New Jersey, doctors say the changes will help. But, they add, the new laws are just a first step in the fight to stop physicians from retiring early, giving up high-risk procedures and moving to states with affordable insurance premiums.

"The financial stability of the few medical liability insurance providers willing to write in New Jersey continues to deteriorate," said Medical Society of New Jersey President S. Manzoor Abidi, MD. That state's bill, passed by the Assembly May 24, didn't include a noneconomic damages cap.

"We are concerned that if more effective reforms are not enacted, neither these carriers nor physicians will be around in a few years," Dr. Abidi said.

The New Jersey measure, which at press time was awaiting and was expected to receive Gov. James McGreevey's signature, would toughen expert witness requirements and shorten the time a minor would have to file a claim for a birth-related injury to 13 years of age. It also would give judges the authority to reduce awards they believe are excessive and allow physicians named in a lawsuit who weren't involved in the patient's care to sign an affidavit and be removed from the case.

If the bill is signed, New Jersey physicians, other health professionals and lawyers would pay a $75 annual fee, and hospitals and other health care businesses would pay a $3 fee per employee to create a $78 million fund that would help offset physicians' liability premiums. State regulators would make the final decision about who gets the money and how much.

"All of that is good," said Ray Canton, MSNJ's government affairs director. But New Jersey physicians hope the reforms don't stop there, he said. MSNJ will continue to push for a noneconomic damages cap. The state will study that possibility and others if the governor signs the bill.

The legislation calls for the Medical Care Availability Task Force to evaluate the pros and cons of capping noneconomic damages, creating screening panels that would evaluate a case's merit, reducing mandated physician liability coverage levels and reforming the insurance industry.

Oklahoma, Ohio adopt more reforms

At press time, it looked as if all Oklahoma doctors were on their way to gaining a cap on noneconomic damages.

Last year, Oklahoma passed a law that limited noneconomic damages awarded in lawsuits against obstetricians and emergency physicians at $300,000 per case, which is viewed by physicians as better than a per-defendant cap. In the closing days of May, the Legislature agreed to extend that cap to all Oklahoma physicians. At press time, Gov. Brad Henry was expected to sign the measure.

"The passage of this liability reform bill this session is a good [thing]," said Oklahoma State Medical Assn. President Mukesh Parekh, MD. "It is not perfect. However, the provisions of the bill will help our medical community to provide access to care for Oklahoma patients."

Among other things, the legislation requires that a lawsuit be filed in the county where the incident allegedly occurred, creates an "I'm sorry" law allowing physicians to offer an apology without it being used against them in court, tightens expert witness requirements, defines what constitutes a frivolous lawsuit and establishes rules that will make it easier for the OSMA-owned medical liability insurance company to do business.

In Ohio, the Legislature continues to build on reforms it passed in late 2002 that included a $350,000 cap on noneconomic damages. The Ohio Senate on May 26 unanimously approved a bill designed to reduce the number of non-meritorious lawsuits filed against physicians. The Ohio State Medical Assn. estimates that 75% of the medical malpractice lawsuits filed result in no payment to the plaintiff.

The bill, which already had passed the House, includes stricter expert witness qualifications and state medical board jurisdiction over out-of-state physicians who testify. Gov. Bob Taft is expected to sign the legislation.

"This measure brings back accountability and responsibility to the process and helps ensure patients have continued access to care when they need it most," Ohio State Medical Assn. President Steven P. Combs, MD, said in a statement.

Other happenings

At press time, tort reform bills were in flux as they worked their way through the Illinois and Massachusetts legislatures.

In New Hampshire, the Senate in May narrowly rejected tort reform that included a $250,000 noneconomic damages cap, periodic payments of future damages and a limit on lawyer fees.

New Hampshire Medical Society Executive Vice President Palmer P. Jones said physicians were disappointed that the bills didn't pass this year, but he thinks the doctors' efforts created a groundswell of support.

"We feel that next year we will be able to move in the correct direction," he said.

In Missouri, the Legislature in May failed to override Gov. Bob Holden's veto of a bill that would have lowered the noneconomic damages limit to $400,000 and done away with the annual adjustment for inflation. The current cap stands at $565,000.

The Missouri State Medical Assn. said it would continue to seek legislative reforms.

"The physicians of the state are gravely disappointed because the efforts to ensure patients' access to care was not recognized in the failed attempt to override Gov. Holden's veto," MSMA President Edmond Cabbabe, MD, said in a statement.

"As the medical professional liability insurance crisis continues to escalate," Dr. Cabbabe said, "more and more physicians are abandoning high-risk practices ... and leaving clinics and hospitals in [plaintiff-friendly] court districts."