Physicians in 4 states score tort reform wins

Missouri and South Carolina are the latest to pass a cap on noneconomic damages; Montana and Virginia ratify other measures.

By Mike Norbut — Posted April 18, 2005

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It's been a busy season already for tort reform, as physicians in four states saw their governors recently sign legislation designed to help ease the burden of rising liability premiums.

Missouri, one of 20 states the AMA has declared to be in crisis because of its liability climate, passed a comprehensive package. It includes a $350,000 cap on noneconomic damages with no adjustment for inflation and a provision limiting a plaintiff to just one award per defendant.

In the past, Missouri plaintiffs were able to collect noneconomic damages multiple times for the same injury, if they could prove that negligence occurred on more than one occasion.

South Carolina also passed a bill that includes a $350,000 cap, while Montana and Virginia adopted measures that, among other provisions, tighten expert witness rules and allow physicians to apologize to patients without having that expression of sympathy used against them in court.

Physicians say momentum is building for tort reform with every legislative action that receives a governor's signature.

"Medical liability reform is on the march at the state level throughout the United States," said AMA Immediate Past President Donald J. Palmisano, MD. "What this shows is the American public is in favor of this."

Persistence in Missouri

It also shows that physicians can be rewarded for their patience and persistence, which was especially true in Missouri.

Doctors in the state had twice seen legislation passed, only to have it vetoed once it reached the governor. Gov. Matt Blunt made tort reform a campaign priority last year, however, so it was only a matter of time once he was elected that physicians would get relief, said Edmond B. Cabbabe, MD, president of the Missouri State Medical Assn.

"This governor made sure to mention it in his address during his inauguration," said Dr. Cabbabe, a plastic surgeon from St. Louis. "He made a commitment to sign the bill as soon as it got to his desk."

The new law, which will take effect Aug. 29, will replace the state's existing cap, which is $579,000. It started at $350,000 in 1986 but has been adjusted for inflation.

The new law also limits the court venue to the county in which the alleged malpractice took place, requires the court to dismiss any lawsuit that lacks an expert's affidavit of merit, makes gestures of sympathy inadmissible in court, and protects volunteer physicians from being sued.

Sara Schuett, executive director of the Missouri Assn. of Trial Attorneys, criticized the legislation as being harmful to the elderly and children. She added that she doesn't believe a correlation exists between tort reform measures and lower liability premiums.

But the state was suffering from an access-to-care problem, Dr. Cabbabe said. "We were losing physicians, and we were having difficulty recruiting them to the state. I don't think the trial attorneys will give up this easily. I hope their challenges won't be many and will be short-lived."

South Carolina was having its own access-to-care issues and was about ready to be classified as a crisis state when the medical association started its push for tort reform earlier this year. It is the first time the state will have a cap on noneconomic damages, although this cap will be adjusted for inflation.

"We are looking forward to a stabilization of liability premiums," said John P. Evans, MD, the president of the South Carolina Medical Assn. and a hand surgeon from Greenville, S.C. "We're hoping that more insurers will come back once the market is stabilized."

In addition to setting a cap, the new law stipulates that a plaintiff must submit a notice of intent to file a lawsuit, including a signed affidavit from a medical expert certifying a cause of action exists, and both parties must undergo mediation before a case can go to trial, Dr. Evans said.

Claim protection

Emergency physicians, obstetricians and surgeons who provide care to patients in "genuine emergency" situations also are protected from claims unless the plaintiff can prove gross negligence, according to the medical association. "We're hoping to see more [obstetricians] maintain their practices, since their rates were rising higher than other physicians," Dr. Evans said.

In Montana and Virginia, lawmakers passed tort reform measures other than noneconomic damage limits.

Montana, which enacted a $250,000 cap on noneconomic damages in 1995, passed four bills related to liability, three of which were supported by the Montana Medical Assn. Besides the expert witness requirements and expression-of-sympathy legislation, the state passed a bill protecting a physician from liability for medical mistakes made by someone involved in the patient's care but not under that doctor's supervision, such as a hospital nurse making an error.

The fourth measure, supported by the state's hospital association, protects hospitals from liability if a physician commits a mistake.

Five more bills are making their way through the state Legislature, including a measure that would create an insurance safety net for physicians in case the remaining two liability insurers leave the state, said Kurt Kubicka, MD, immediate past president of the Montana Medical Assn. and a family physician from Helena, Mont.

"If either company was to depart, that would mean between 25% and 45% of physicians would be without insurance," Dr. Kubicka said. "The safety net would be for both physicians and patients."

In Virginia, Gov. Mark Warner signed legislation that, in addition to expert witness and expression-of-sympathy language, provides the chance for the treating physician to testify about his or her patient in court, as opposed to only being deposed. It also calls for an investigation by the board of medicine of any doctor who has three paid claims within 10 years.

Virginia has an overall awards cap of $1.75 million, which is scheduled to gradually rise to $2 million in 2008. Physicians have pushed for a standard cap on noneconomic damages, but to no avail, said Ann Hughes, director of legislative affairs for the Medical Society of Virginia.

"In the meantime, we're doing things that we know will have a positive impact," she said. "We're pleased with what we got. Is it enough? Absolutely not. Will we be back next year? Absolutely."

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Eye on reform

Missouri: Caps noneconomic damages at $350,000, limits plaintiff to one set of noneconomic damages per defendant, restricts court venue, allows expressions of sympathy by doctors and requires a court to dismiss cases that don't include an affidavit of merit.

Montana: Tightens expert witness rules, allows physicians to make an expression of sympathy without it being used against them in court and protects physicians from liability for medical errors made by someone not under their supervision.

South Carolina: Caps noneconomic damages at $350,000, requires plaintiffs to provide notice of an intent to file a lawsuit with an affidavit of merit, mandates mediation and protects certain physicians providing care in emergencies from claims unless the plaintiff can prove gross negligence.

Virginia: Tightens expert witness provisions, makes expressions of sympathy inadmissible in court and allows a physician to testify in court about his or her patient for the defense.

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