Arkansas high court rejects liability reforms

The ruling is the second in the past year to find tort reform measures unconstitutional.

By Amy Lynn Sorrel — Posted May 19, 2009

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The Arkansas Supreme Court for the second time struck down portions of the state's tort reform law, a move doctors fear could hurt future reform efforts and disrupt the medical liability climate.

Justices unanimously found unconstitutional a provision of a 2003 law that requires plaintiffs in negligence cases to present to the court evidence related to medical costs paid for by other parties -- such as health insurers -- as well as any unpaid expenses. The statute also requires courts to consider potential fault by parties not named in a medical liability suit and hold defendants responsible for only their share of the alleged negligence.

Siding with trial lawyers, the high court on April 30 found that the two measures infringed on courts' authority to set procedural and evidentiary rules, and violated the separation of powers between the legislature and the judiciary.

Because Arkansas does not have a law capping damages in medical liability cases, the reform measures were critical to helping keep jury verdicts reasonable, in turn containing doctors' medical liability costs and maintaining access to care, said David Wroten. He is executive vice president of the Arkansas Medical Society, which, along with the American Medical Association, filed a friend-of-the-court brief in the case.

"This reflected reality rather than providing potential windfalls to plaintiffs," Wroten said.

The decision comes on the heels of a 2008 high court ruling in which justices, on similar grounds, invalidated the state's certificate-of-merit law requiring the filing of an expert opinion with a medical liability case.

"This can only have a cumulative effect" on the medical liability climate, Wroten said. The rulings could make it difficult to pass additional reforms or signal a threat to other existing measures, he noted.

The Arkansas Medical Society also fears that the decisions could reverse a 50% drop in liability case filings since passage of the 2003 law, which has contributed to an influx of new insurers and a moderation in doctors' liability premiums.

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