Challenges in state courts: New tort reforms under fire

Physicians in states with newly legislated tort reforms that included noneconomic damages caps knew the laws weren't going to mean much until they survived court challenges that likely would be taken all the way to each state's supreme court.

The highest court in West Virginia will be the first to hear a challenge, but two of the other five states whose legislatures passed tort reform in the past few years are also likely to see such high court challenges eventually, since lawsuits are lingering in their lower courts.

The West Virginia Supreme Court of Appeals will consider arguments involving that state's law, which reduced the noneconomic damages cap to $250,000 as well as called for the new limit to apply to any cases filed after the date the law took effect, even if the incident that prompted the lawsuit occurred before that July 1, 2003, date.

A ruling is expected as soon as the end of the year.

The first lawsuit challenging Florida's tort reform statute, which included a $500,000 noneconomic damages cap, was filed Aug. 30. And more than a dozen lawsuits have been filed in Ohio trial courts, some challenging that state's entire statute and others challenging specific parts of the law, such as the $350,000 noneconomic damages cap.

The lawsuits don't come as any surprise.

"To get an effective law requires a vote by the legislature and then court challenges that may take 10 years to get a decision," said Donald J. Palmisano, MD, immediate past president of the American Medical Association.

Mississippi, Nevada and Oklahoma -- all of which passed reforms in the past few years that included noneconomic damages caps -- have yet to see lawsuits filed in their state courts, according to medical societies in those states.

Physicians in Mississippi and Oklahoma expect a challenge at some point.

In Nevada, whether lawsuits are filed will depend on the outcome on ballot issues in November. Doctors and liability insurers in Nevada are asking voters to strengthen Nevada's existing $350,000 noneconomic damages cap and implement other reforms.

Trial lawyers are asking them to approve two measures, including language that would prohibit the Legislature from interfering with jury awards.

One state will escape court challenges: Texas. Last year, voters approved a measure that created a $250,000 noneconomic damages cap and amended the Texas Constitution to allow caps on noneconomic damages in medical malpractice lawsuits.

Big test in West Virginia

At issue in the lawsuit before West Virginia's highest court is whether pre-lawsuit requirements in the tort reform law apply to a lawsuit filed after the new rules took effect. The alleged incidents involved in the lawsuit took place before tort reform was enacted.

But the appeal also questions the overall constitutionality of the tort reform. Given the questions raised and the fact that this is the first case that the West Virginia Supreme Court of Appeals will consider, the West Virginia State Medical Assn., the AMA and nine other organizations joined in a friend-of-the-court brief defending everything that the West Virginia Legislature passed in 2003.

Oral arguments are scheduled for Nov. 9.

The plaintiff is "taking a broad swipe at all we worked to achieve," said Evan Jenkins, executive director of the West Virginia State Medical Assn. "We hope the court just rejects the appeal in general."

If the court decides the case on issues that involve the constitutionality of the law, the WVSMA, AMA and others argue that the Legislature was constitutionally correct in passing the reforms and that they are constitutionally sound. They also argue that the law should apply to all lawsuits filed after the law took effect.

"The Legislature was within its province in asserting and applying an effective date for all cases filed on or after a date certain," the brief states.

The case also prompted the West Virginia Trial Lawyers Assn. and the Assn. of Trial Lawyers of America to file their own brief, arguing that applying the new law to cases involving events that occurred before the law was passed is a violation of a person's due process.

Paul T. Farrell Jr., chair of the West Virginia Trial Lawyers Assn.'s amicus committee, gives this analogy: If someone stole money, then after the theft the law changed to make it OK to steal money, the victim couldn't sue because of the new law. "It's changing the rules in the middle of the game," he said.

The lawyers groups also argue that the law's impact is arbitrary and unreasonable.

"In this case, retroactive application of the amendments to the Medical Professional Liability Act would impose the costs of attracting physicians of all West Virginians on an exceedingly few and finite number of victims of medical negligence," the lawyers' brief states. "Others injured in the same manner on the same day are not subject to those limitations based on the fortuity of their filing date."

Ohio, Florida keep eye on challenges

In Ohio, more than a dozen lawsuits have challenged different aspects of the tort reform that went into effect in 2003, said Tim Maglione, senior director of government relations for the Ohio State Medical Assn.

Among other things, Ohio's Legislature placed a $350,000 cap on noneconomic damages for each victim in most cases, allowed judges to review how much an attorney is paid and said physicians could be held responsible only for the portion of the damage for which they're liable.

The lawsuits are still at the trial court level, and OSMA plans to get involved when the cases reach the appellate level. In the meantime, physicians are working to ensure that the law has the best chance possible of being held constitutional by the Ohio Supreme Court.

The state's high court in 1991 and 1996 struck down earlier tort reform passed by the Legislature. But the philosophical makeup of the seven-member court is changing, and doctors have a chance to change it further in November.

Physicians helped elect their favored judicial candidate in the last election.

This year, four of the seven justices are up for re-election, and three incumbents are running. One judge who is not likely to vote in favor of tort reform is unopposed. The other two incumbents are judges more likely to vote for tort reform. The retiring judge likely would vote against tort reform, Maglione said.

"They make decisions as important as the Legislature or governor," he said. "We need to be cognizant of that."

In Florida, the medical association is also waiting to learn more about the recent case challenging the constitutionality of the Legislature-passed $500,000 cap before it gets involved, said Florida Medical Assn. spokeswoman Lisette Mariner.

The upcoming legal fight has been expected since the law was passed. "It wasn't something that came as a shock," she said.