Few states get high marks in report on liability environment

States that received failing grades for their medical liability environment have one thing in common: No effective cap on noneconomic damages in medical liability cases.

Eleven states and the District of Columbia received F grades in the "National Report Card on the State of Emergency Medicine" released by the American College of Emergency Physicians in January. ACEP gave D's to 30 other states in the "medical liability environment" category, assessing the level of caps, reform initiatives and the increase in insurance premiums.

"We believe the most important reform is caps," said ACEP Immediate Past President Robert Suter, DO.

Medical liability has a significant effect on whether emergency physicians can afford to practice and whether the specialists they depend on for follow-up care can afford to stay in business, said Dr. Suter, a Houston emergency physician. That's why the medical liability category counted for a hefty 25% of a state's overall grade and why caps on noneconomic damages weighed so heavily, he said. Only one state on the failing list, Maryland, has a cap on noneconomic damages. But at $650,000, it is still "largely ineffective," said Michael Preston, the Maryland State Medical Society's executive director.

The grade also took into account pretrial screening, expert-witness rules, joint liability reform and the increase in medical liability insurance rates for physicians and specialists from 2001 to 2004. Only a few of the failing states succeeded in some of these areas.

While each "F" state admits to struggling with caps, some medical societies criticized the report for not giving enough credit to alternative medical liability reforms.

"Their data is outdated and doesn't consider other tort reforms that were passed," since the study began, said David Wroten, executive vice president of the Arkansas Medical Society.

Although the study measured the increase in medical liability premiums, "it did not compare actual malpractice premiums," which can be a better gauge of whether doctors will relocate, Wroten said.

Other states' officials noted legislation to curb frivolous lawsuits and limit high damage awards not mentioned in the ACEP study. For example, Arkansas, Pennsylvania and New Jersey require certificates of merit, and Arkansas and Pennsylvania prohibit venue shopping.

"We're also looking at specialty courts and an apology rule," said Mark Piasio, MD, executive director of the Pennsylvania Medical Society.

Nevertheless, caps remain the goal for each of the failing states and are "probably the most important thing and are proven to work across the country in states like California and Texas," said Peter Lavine, MD, board chair for the Medical Society of the District of Columbia.

California and Texas have a $250,000 cap on noneconomic damages in medical liability cases, and those states received an A-plus in the report card's liability section.

Among those that received an F, Arkansas, Connecticut, New Jersey, North Carolina, Pennsylvania, Rhode Island, and Wyoming also are on the American Medical Association's 2005 list of states in medical liability crisis because insurance premiums are driving doctors to retire early, eliminate high-risk procedures or move out of state.

Overall, the United States earned a C-minus on its emergency care system. The report said the system is plagued with overcrowding, declining access to care, poor disaster preparedness and soaring liability costs.