Doctors to storm states for tort reform

The November 2004 elections changed the politics in some states.

By Tanya Albert amednews correspondent — Posted Jan. 17, 2005

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Many doctors this year will return to places they've come to know well -- their state capitols.

With 2005 just under way, it's already shaping up to be another busy year for physicians trying to get their state lawmakers to enact tort reforms they believe will help stabilize the medical liability insurance market.

A $250,000 cap on noneconomic damages is one big item physicians believe is necessary to accomplish that.

While the insurance industry and some lawmakers -- predominately Republicans -- agree, trial lawyers and most Democrats have vigorously resisted caps. Opponents believe that insurance reform would do more to lower insurance rates.

The dynamic has made it difficult to pass tort reforms in many parts of the country in recent years. But doctors from coast to coast are again gearing up to fight for such laws.

Physicians in many states say something has to happen this year or more doctors will start retiring early, moving out of state or cutting back on high-risk procedures. That would hurt patients' access to care, they point out.

"The public has not yet complained about not being able to see a physician," said Timothy B. Norbeck, executive director of the Connecticut State Medical Society. "But once we get there, it will be too late."

The situation is similar in Illinois.

"This is going to be the make-it-or-break-it year, because I don't know how much more strain the system can take," said Illinois State Medical Society President Kenneth J. Printen, MD.

November election changes dynamics

Connecticut and Missouri physicians have worked tirelessly for several years to pass tort reforms and still haven't seen their work come to fruition.

But changes in state government as a result of the November 2004 election will make things a little easier in Missouri and make things a little more challenging in Connecticut.

In Missouri, Gov.-elect Matt Blunt has said that tort reform will be a top priority. Blunt replaces Gov. Bob Holden, who twice vetoed tort reform after the Legislature passed measures approved by doctors.

The Missouri State Medical Assn. plans to see a broad-based bill introduced to the Legislature early this year. At press time, the specifics were not worked out.

"It won't be easy, but we are going to get things done," said MSMA Government Relations Director Tom Holloway. "Things are better now [politically] than they were."

In Connecticut, voters elected more lawmakers who don't agree that noneconomic damages caps are part of the solution to physicians' insurance problems.

But tort reform remains CSMS' top priority. Physicians are planning to push for a noneconomic damages cap, periodic payments of large awards, a review panel that has teeth in it and premium relief for physicians, Norbeck said.

"It will be tougher this year than it was last year," he said. "But we are going to give it everything we've got."

Maryland and other states

Although Maryland's Legislature passed tort reforms in a special session held in the closing days of 2004, doctors expect to go back to the state Capitol this year because at press time, Gov. Robert L. Ehrlich Jr. was expected to veto the measure.

The legislation calls for increasing physicians' premiums by 5% this year, instead of the 33% jump that was already approved for 2005. The bill also includes language that would temporarily freeze the state's limit on noneconomic damages at $650,000.

But the bill also includes a 2% tax on HMO premiums, which Ehrlich said would force a veto. The measure still could go through because it passed with enough votes to override a veto.

In a joint statement, MedChi and the Maryland Hospital Assn. said Ehrlich should allow the bill to become law. If the veto does occur, the groups would support a General Assembly override, they said. "While we agree with the governor and others that Maryland needs more comprehensive reform, [the legislation] does offer important positive elements that we cannot walk away from, given the need to assure access to health care to the citizens of Maryland," MedChi and MHA stated.

Although not a comprehensive list, here's what other states are planning:

Illinois Physicians, lawyers, lawmakers and others continue a mediation process that Gov. Rod R. Blagojevich reopened in September 2004. The ISMS wants to see a $250,000 cap on noneconomic damages, a provision that protects physician assets, a strengthening of the state's certificate-of-merit law, a change in expert witness laws and an increase in medical discipline board investigations.

Pennsylvania Doctors again will try to get the state constitution changed so that the Legislature can consider caps. In July 2004, House and Senate committees failed to pass bills that would have started the process to get a referendum before voters asking them to eliminate the ban on caps.

South Carolina The South Carolina Medical Assn. is part of a coalition that will push for a $250,000 cap on noneconomic damages, increased funding for the Board of Medical Examiners, a new requirement for a certificate of merit for malpractice cases and elimination of a law that prohibits doctors and patients from signing binding arbitration agreements.

Virginia The Medical Society of Virginia plans to push for legislation that includes a $250,000 cap on noneconomic damages and "I'm sorry" language that will allow doctors to apologize without their words being used as an admission of guilt during a trial. Doctors also want money paid by collateral sources to be introduced as evidence during trials, and they want to protect physicians from liability when a patient leaves their care against medical advice.

Washington In late December 2004, a coalition of physicians, health care professionals and others turned in enough signatures for the state to consider the Health Care Access Initiative. The measure calls for reforms to limit attorney contingency fees and to cap noneconomic damages at between $350,000 and $1.05 million, depending on the number of defendants. The Legislature will have a chance to vote on the package this session.

Wyoming The state will look at how it will implement a medical review panel that voters called for in the November 2004 election. The Wyoming Medical Society also wants lawmakers to look at forming an excess liability fund, strengthening expert witness qualifications and informing juries about collateral source payments in medical liability cases.

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