2006: A tough year for medical liability reform

May 1, 2006

Is this the year for medical liability reform in Washington? Or isthe best option for those seeking relief to focus their efforts onthe state lawmakers in those states where help is needed most?

Is this the year for medical liability reform in Washington? Or is the best option for those seeking relief to focus their efforts on the state lawmakers in those states where help is needed most?

President Bush is strongly behind the move and backs medical liability reform that would include:

Battleground states

However, many advocates of reform are covering their bets by focusing on several key battleground states, hoping to enact ceilings on noneconomic damages - preferably set at $250,000 - and other limits as well. California's law, which has such a limit, is used as an example, since reform advocates say the liability picture there is stable.

In 2005, caps on noneconomic damages were enacted in Alaska, Missouri, Georgia, South Carolina, South Dakota and Illinois. Currently, at least 71 related bills are being considered across the country.

No such caps exist in 20 states, and the American Tort Reform Association (ATRA) has named some of them "judicial hellholes," including West Virginia, Texas, Illinois, Florida and Wisconsin, among others, because of malpractice lawsuits and jury awards.

According to ATRA, Wisconsin had a reputation for "fair and balanced" decisions and awards, largely because of a $350,000 cap that was enacted in 1995, and, adjusted for inflation, stood at $445,775 in 2005. But then the state Supreme Court held that the cap was unconstitutional, and after the legislature passed a new law, it was vetoed by Gov. Jim Doyle (D).

ATRA had urged the governor to sign the new law, declaring that the state Supreme Court decision "placed patient access to healthcare in jeopardy by sending a signal to the personal injury bar that Wisconsin courts are open for business." Apparently, Gov. Doyle disagreed.

Florida's bill

Late in March, Florida passed a new joint and several liability bill, which was expected to be signed by Gov. Jeb Bush. Current Florida law allows deep-pocketed defendants to pay more than their fair share of jury awards in cases where there are multiple defendants. Under the new Florida bill, each co-defendant will be proportionately liable only for his or her share of the plaintiff's harm.

In Pennsylvania, Gov. Ed Rendell (D) vetoed legislation in late March that would have contained similar restrictions. It also would have prevented victims from suing multiple defendants.

Provisions

Another important provision in some proposed state laws allows a physician to express sympathy to a patient's family without those statements being used against him or her in court. Nine states enacted such measures last year, and they are currently being considered in Wisconsin and Vermont.