Vote of confidence for tort reform: Victory at the ballot box

Physicians plan to build on the momentum to accomplish more changes at the state and federal levels.

Posted Dec. 13, 2004.

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On election day, physicians showed what a powerful force for change they can be. Voters in Florida, Nevada and Wyoming passed ballot initiatives championed by doctors, their state associations and the AMA that will help ease the medical liability crises in those states. Their efforts follow in the footsteps of Texas physicians, who last year gained voter approval for their tort reform measure.

These direct appeals to citizens won because physicians brought home the real-life impact that out-of-control liability premium increases have on health care in their communities. How all the anesthesiologists in the Wyoming cities of Riverton and Lander had to quit because of high rates, forcing hospitals to use temporary traveling physicians. How Nevada has the highest percentage of physicians -- nearly 20% -- who have stopped practicing obstetrics. How neurosurgeon shortages in some Florida communities are hurting patients' ability to get timely emergency care.

The bottom line: Once informed about the liability problem, voters recognized the need to preserve access to medical services and supported the physicians who provide that care.

Their votes resulted in an end to exceptions to the $350,000 noneconomic damages cap and passage of several other reforms in Nevada, limits on attorneys' share of malpractice awards in Florida, and approval of a medical review panel to weed out frivolous lawsuits against doctors in Wyoming.

These victories are a testament to voters' trust in physicians. In each state, trial lawyers fought fiercely against the physicians' measures and in some cases even waged misinformation campaigns.

For example, opponents of Florida's physician-backed amendment ran television ads falsely claiming the measure, which limits lawyers' fees, would somehow give HMOs and "big health care providers" special legal protection and would make patients less safe.

Fortunately, as AMA President John C. Nelson, MD, MPH, said in press releases supporting passage of the ballot initiatives, people "were not fooled by empty rhetoric and junk science."

But trial lawyers were and will continue to be formidable foes. They, too, celebrated successes at the ballot box last month. An Oregon measure that would have amended the state constitution to cap noneconomic damages at $500,000 failed by a narrow margin. In Wyoming, voters rejected by a hair an initiative that would have allowed the state Legislature to limit noneconomic damages. And in Florida, citizens approved measures to strip doctors of their medical licenses if they have three malpractice judgments or disciplinary actions against them and to give patients expanded access to records, including previously confidential peer review documents, connected with adverse incidents.

So the fight is not over.

The Oregon and Wyoming medical associations have vowed to continue to press for tort reforms in their states.

The Florida Medical Assn., with the AMA's support, is working to block implementation of the trial-lawyer-supported measures, both of which could prolong the liability crisis in that state.

This year's ballot box victories should give doctors in those states hope and should encourage physicians in other states hit hard by liability problems to appeal directly to voters. The AMA is already helping the Washington State Medical Assn. with its tort reform ballot initiative for 2005.

The recent successes in the states could have a broader impact. The AMA will carry forward the renewed optimism these wins elicit as it works to enact proven medical liability reforms for the entire nation.

This effort got another boost with President Bush's recent promise to continue his fight for federal tort reform during his second term. The election of several additional liability reform-minded Republicans to the Senate, long an obstacle to liability system changes, also could improve the chances for a bill's passage. Included on this list is North Carolina Republican Richard Burr, who was elected to the seat vacated by former Democratic vice presidential candidate John Edwards.

The November election showed just what doctors working together can accomplish. Now is the time to build on that momentum to achieve positive results both in the states and in Congress.

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