ATRA :: Medical Liability Reform

Medical Liability Reform

Issue Brief and State Reforms | Reforms by Date Enacted | Constitutionality of Reforms

MEDICAL LIABILITY REFORM

Reforms Upheld as Constitutional (after 1983)

ALABAMA

Barlow v. Humana, Inc., 495 So. 2d 1048 (Ala. 1986) (two-year statute of limitations supplemented with a six-months savings clause applicable to medical malpractice causes of action not discovered within two years did not violate State Constitutional article prohibiting legislature from making unreasonable, arbitrary, or oppressive modifications of fundamental rights insofar as minor medical malpractice claimant was concerned); Tucker v. Nichols, 437 So. 2d 1263 (Ala. 1983) (same statute held not to violate equal protection clause of State Constitution).

Marsh v. Green, 782 So. 2d 223 (Ala. 2000) (collateral source rule reform in civil tort cases did not violate the right to trial by jury, or the due process, equal protection, access to courts, or right to a remedy provisions of the State Constitution, or the principle of separation of powers) (overruling American Legion Post No. 57 v. Leahey, 681 So. 2d 1337 (Ala. 1996)).

McGlothren v. Eastern Shore Family Practice, P.C., 742 So. 2d 173 (Ala. 1999) (act amending a statute setting the qualifications for expert witnesses in a medical malpractice action did not violate the single subject provision of the State Constitution as applied to plaintiff’s action).

Plitt v. Griggs, 585 So. 2d 1317 (Ala. 1991) (statute requiring testimony from similarly situated health care provider in medical malpractice actions did not deny equal protection under the State or Federal Constitutions).

ALASKA

Evans v. State, 2002 WL 1998141 (Alaska Aug. 30, 2002) (comprehensive 1997 tort reform statute including caps on noneconomic and punitive damages, a requirement that 50% of punitive damages awards be paid into the state treasury, a ten-year statute of repose, a modified tolling provision for the statute of limitations as applied to minors, comparative allocation of fault between parties and non-parties, a revised offer of judgment procedure, and partial immunity for hospitals from vicarious liability for some physicians’ actions did not violate the right to a jury trial, the right to equal protection, or the right to substantive due process in the State or Federal Constitutions, the separation of powers doctrine, or the right of access to the courts or ban on “special legislation” in the State Constitution).

Reid v. Williams, 964 P.2d 453 (Alaska 1998) (statute abrogating collateral source bar, which precluded a medical malpractice patient’s recovery of medical expenses paid by his insurer, did not violate the substantive due process or equal protection clauses of the State Constitution).

ARKANSAS

Gay v. Rabon, 652 S.W.2d 836 (Ark. 1983) (statutory requirement that potential medical malpractice claimants provide notice of intent to sue at least sixty days in advance of filing did not violate State Constitutional provisions relating to equal protection, prohibition against special legislation, or right to remedy); Simpson v. Fuller, 665 S.W.2d 269 (Ark. 1984) (same statute held not to violate equal protection clauses of State or Federal Constitutions or right to remedy provision of State Constitution).

CALIFORNIA

American Bank and Trust Co. v. Community Hospital of Los Gatos-Saratoga, Inc., 683 P.2d 670 (Cal. 1984) (statute providing for periodic payment of “future damages” in medical malpractice actions, rather than lump‑sum payments, did not violate due process or equal protection provisions of State Constitution).

Fein v. Permanente Medical Group, 695 P.2d 665 (Cal.) (neither $250,000 limit on noneconomic damages in medical malpractice actions nor collateral source reform statute violated equal protection or due process provisions of State or Federal Constitutions), appeal dismissed, 474 U.S. 892 (1985).

COLORADO

Adams v. Richardson, 714 P.2d 921 (Colo. App. 1986) (three-year statute of repose for medical malpractice claims did not violate equal protection guarantees of State Constitution insofar as it applied to persons alleging claims of negligent treatment).

Scholz v. Metropolitan Pathologists, P.C., 851 P.2d 901 (Colo. 1993) ($1 million aggregate limit on damages recoverable in health care liability actions did not violate due process or equal protection provisions of State Constitution).

FLORIDA

Blue Cross and Blue Shield of Florida, Inc. v. Matthews, 498 So. 2d 421 (Fla. 1986) (statute preventing double recovery by plaintiffs of collateral source payments in personal injury suits arising from automobile accidents did not violate equal protection provision of State Constitution).

Carr v. Broward County, 541 So. 2d 92 (Fla. App. 1989) (medical malpractice statute of limitations and repose law did not violate access to courts provision of State Constitution); Shields v. Buchholz, 515 So. 2d 1379 (Fla. App. 1987) (same), review dismissed, 523 So. 2d 578 (Fla. 1988); Cates v. Graham, 451 So. 2d 475 (Fla. 1984) (same); Pisut v. Sichelman, 455 So. 2d 620 (Fla. App. 1984) (same).

Mizrahi v. North Miami Medical Center, Ltd., 761 So. 2d 1040 (Fla. 2000) (provision in wrongful death statute precluding adult children from recovering nonpecuniary damages in an action for a parent’s death due to medical malpractice did not violate equal protection under either the State or Federal Constitutions).

Perlstein v. Malunney, 500 So. 2d 585 (Fla. App. 1986) (statute requiring notice of intent to file medical malpractice action in advance of filing did not violate State Constitutional guarantees of access to courts, equal protection, or due process, and was not fatally vague or ambiguous), review denied, 511 So. 2d 299 (Fla. 1987); Lindberg v. Hospital Corp. of America, 545 So. 2d 1384 (Fla. App. 1984) (same statute did not violate access to courts provision of State Constitution), aff’d, 571 So. 2d 446 (Fla. 1990).

The Lower Florida Keys Hospital District v. Littlejohn, 520 So. 2d 56 (Fla. App.) (statute providing for award of attorney fees to prevailing parties in medical malpractice actions was constitutional), review denied sub nom. Florida Medical Malpractice Joint Underwriting Association v. Littlejohn, 531 So. 2d 1352 (Fla. 1988).

University of Miami v. Echarte, 618 So. 2d 189 (Fla.) (statute providing for recovery of 80% of lost wages and earning capacity and capping noneconomic damages at $250,000 in medical malpractice claims when party submits to a binding medical arbitration panel did not violate equal protection, due process, or takings provisions of State or Federal Constitutions, or right to jury trial provision, single subject requirement, or nondelegation doctrine under State Constitution), cert. denied, 510 U.S. 915 (1993).

GEORGIA

Braden v. Bell, 473 S.E.2d 523 (Ga. App. 1996) (five-year statute of repose for medical malpractice claims did not violate equal protection guarantees of State or Federal Constitutions).

IDAHO

Hawley v. Green, 788 P.2d 1321 (Idaho 1990) (statute of limitations applicable to medical malpractice actions did not violate open courts or equal protection provisions of State Constitution).

Kirkland v. Blaine County Medical Center, 4 P.3d 1115 (Idaho 2000) ($400,000 cap on noneconomic damages in personal injury and wrongful death actions did not violate right to jury trial, constitute special legislation, or violate separation of powers doctrine under State Constitution).

ILLINOIS

Bernier v. Burris, 497 N.E.2d 763 (Ill. 1986) (statute providing for periodic payments of future medical malpractice damage awards did not violate equal protection provisions of State or Federal Constitutions and did not constitute prohibited special legislation; statute limiting amount of contingent fees that attorneys representing medical malpractice plaintiffs may recover, but providing that court may review the fee agreement and approve a larger fee in an appropriate case, did not violate access to courts provision of State Constitution or equal protection, or due process provisions of State or Federal Constitutions, and did not constitute prohibited special legislation).

Mega v. Holy Cross Hospital, 490 N.E.2d 665 (Ill. 1986) (four-year statute of repose for medical malpractice claims did not violate right to remedy provision of State Constitution).

McAlister v. Schick, 588 N.E.2d 1151 (Ill. 1992) (statutory requirement that plaintiff attach certificate of merit to health care liability action did not violate separation of powers provision of State Constitution or equal protection or due process clauses of State or Federal Constitutions); Garland v. Kauten, 567 N.E.2d 707 (Ill. App. 1991) (same statute held not to violate separation of powers provision of State Constitution), appeal denied, 596 N.E.2d 628 (Ill. 1992); Kus v. Sherman Hospital, 561 N.E.2d 381 (Ill. App. 1990) (same), appeal denied, 652 N.E.2d 343 (Ill. 1995); Bloom v. Guth, 517 N.E.2d 1154 (Ill. App. 1987) (same statute held not to violate right to jury trial and right to remedy provisions of State Constitution, not did it constitute prohibited special legislation, nor did it violate equal protection, due process, or contract clauses of State or Federal Constitutions), appeal denied, 526 N.E.2d 827 (Ill. 1988); Sakovich v. Dodt, 529 N.E.2d 258 (Ill. App. 1988) (same statute held not to violate equal protection or due process clauses of State or Federal Constitutions), cert. denied, 494 U.S. 1086 (1990); Alford v. Phipps, 523 N.E.2d 563 (Ill. App. 1988) (same statute held not to violate right to jury trial provision of State Constitution or due process clauses of State or Federal Constitutions).

Thompson v. Franciscan Sisters Health Care Corp., 578 N.E.2d 289 (Ill. App. 1991) (statute of limitations for medical malpractice actions that requires minors to bring action within prescribed time limit, regardless of whether injury could have been discovered before minor reaches majority, did not violate minor’s due process or equal protection provisions of the State or Federal Constitutions); Brown v. Mason, 477 N.E.2d 61 (Ill. App. 1985) (statute of limitations for medical malpractice claims did not violate equal protection clause of State Constitution).

INDIANA

Cundiff v. Daviess County Hospital, 656 N.E.2d 298 (Ind. App. 1995) (provision of Medical Malpractice Act pursuant to which minor under age six had until age eight to bring suit against medical provider did not violate due process or equal protection clauses of State or Federal Constitutions).

IOWA

Koppes v. Pearson, 384 N.W.2d 381 (Iowa 1986) (statute of limitations for medical malpractice suits did not violate equal protection clauses of State or Federal Constitutions).

Lambert v. Sisters of Mercy Health Corp., 369 N.W.2d 417 (Iowa 1985) (failure of statute abrogating collateral source role in specified situations involving medical and hospital malpractice claims to distinguish between insured and self-insured institutions did not violate equal protection clause of Federal Constitution).

KANSAS

Bair v. Peck, 811 P.2d 1176 (Kan. 1991) (statute eliminating vicarious liability for employers of health care providers did not violate equal protection, jury trial, and justice without delay provisions of State Constitution).

Samsel v. Wheeler Transport Services, Inc., 789 P.2d 541 (Kan. 1990) (Kansas Health Care Provider Insurance Availability Act provision setting $250,000 limit on noneconomic losses in health care liability actions did not violate right to jury trial or due process provisions of State Constitution).

LOUISIANA

Butler v. Flint Goodrich Hospital of Dillard University, 607 So. 2d 517 (La. 1989) (statute setting $500,000 limit on general damages in medical malpractice actions did not violate equal protection provisions of State or Federal Constitutions).

Crier v. Whitecloud, 496 So. 2d 305 (La. 1986) (three-year limit on medical malpractice claims did not violate due process or access to courts provisions of State Constitution, or equal protection clauses of State or Federal Constitutions).

Valentine v. Thomas, 433 So. 2d 289 (La. App.) (three-year statute of repose for medical malpractice actions did not violate access to courts provision of State Constitution and did not violate equal protection or due process provisions of State or Federal Constitutions), writ denied, 440 So. 2d 728 (La. 1983).

MAINE

Choroszy v. Tso, 647 A.2d 803 (Me. 1994) (statute requiring medical malpractice patients other than foreign-object claimants to bring action within three-years of act giving rise to injury did not violate open courts or equal protection provisions of State Constitution).

Maine Medical Center v. Cote, 577 A.2d 1173 (Me. 1990) (statute limiting time during which statute of limitations is tolled for minors with regard to medical malpractice actions did not violate open courts or equal protection provisions of State Constitution).

MICHIGAN

Heinz v. Chicago Road Investment Co., 549 N.W.2d 47 (Mich. App. 1996) (statute providing for admissibility of collateral source payments in personal injury actions did not constitute unconstitutional taking of property and did not violate equal protection or right to jury trial provisions of State Constitution), appeal denied, 567 N.W.2d 250 (Mich. 1997).

McDougall v. Schanz, 597 N.W.2d 148 (Mich. 1999) (statute establishing standards for the qualification of experts in medical malpractice cases was an enactment of substantive law which did not impermissibly infringe on Court’s constitutional rule-making authority over practice and procedure).

MINNESOTA

Imlay v. City of Lake Crystal, 453 N.W.2d 326 (Minn. 1990) (statutory limit on municipal joint liability did not violate equal protection clauses of State or Federal Constitutions; statutory provision allowing court to offset collateral source payments from damages awards in personal injury actions did not violate equal protection clauses of State or Federal Constitutions).

Johnson v. Farmers Union Central Exchange, Inc., 414 N.W.2d 425 (Minn. App. 1987) (statutory provision allowing court to offset collateral source payments was not unconstitutionally vague and did not violate due process, equal protection, or right to remedy provisions of State Constitution).

MISSOURI

Adams v. Children’s Mercy Hospital, 832 S.W.2d 898 (Mo.) ($350,000 limit on noneconomic damages recoverable from any one defendant in a health care liability action did not violate equal protection clauses of the State or Federal Constitutions, or open courts or right to remedy provisions of State Constitution), cert. denied, 506 U.S. 991 (1992).

Harrell v. Total Health Care, Inc., 781 S.W.2d 58 (Mo. 1989) (former statute which exempted health service corporations from some forms of liability for injuries to patients did not violate open courts provision of State Constitution and did not violate equal protection or due process provisions of State or Federal Constitutions).

NEVADA

Barrett v. Baird, 908 P.2d 689 (Nev. 1995) (medical malpractice screening panel statutes did not violate State Constitutional provisions regarding right to jury trial, equal protection, due process, or separation of powers).

NEW JERSEY

Barreiro v. Morais, 723 A.2d 1244 (N.J. 1999) (Affidavit of Merit statute applicable to medical malpractice claims did not violate due process, equal protection, or separation of powers provisions of State Constitution).

Perna v. Pirozzi, 457 A.2d 431 (N.J. 1983) (statute requiring pretrial submission of medical malpractice claims to medical review panel did not violate right to jury trial provision of State Constitution or equal protection provisions of State or Federal Constitutions).

NEW YORK

Doe v. State of New York, 189 A.D.2d 199, 595 N.Y.S.2d 592 (N.Y.A.D. 1993) (statute requiring future damage awards in excess of $250,000 in health care liability actions to be paid over time instead of in lump-sum did not violate due process provision of State Constitution).

Treyball v. Clark, 483 N.E.2d 1136 (N.Y. 1985) (statute authorizing any party to a medical malpractice action to admit in evidence the unanimous recommendation of medical malpractice mediation panel on the question of liability did not violate right to jury trial under State Constitution or due process provisions of State or Federal Constitutions).

NORTH CAROLINA

Walker v. Santos, 320 S.E.2d 407 (N.C. App. 1984) (four-year statute of repose as applied to health care liability actions did not violate open courts provision of State Constitution).

OHIO

Buchman v. Wayne Trace Local School District Board of Education, 652 N.E.2d 952 (Ohio) (statute authorizing trial court to offset collateral source benefits from judgments received by claimants in actions against political subdivisions to the extent the benefits can be matched to a corresponding component of the jury’s verdict did not violate equal protection, due process, or jury trial provisions of State Constitution), reconsideration denied, 655 N.E.2d 188 (Ohio 1995); Menafee v. Queen City Metro, 550 N.E.2d 181 (Ohio 1990) (same statute held to be a Constitutional exercise of legislative authority under the

OREGON

Jones v. Salem Hospital, 762 P.2d 303 (Or. App. 1988) (medical malpractice statute of repose did not violate State or Federal equal protection Constitutional guarantees), review denied, 770 P.2d 595 (Or. 1989

SOUTH CAROLINA

Hoffman v. Powell, 380 S.E.2d 821 (S.C. 1989) (six-year statute of repose for medical malpractice actions did not violate equal protection or due process clauses of State or Federal Constitutions).

TEXAS

McGlothlin v. Cullington, 989 S.W.2d 449 (Tex. App. 1999) (Texas Medical Liability and Insurance Improvement Act’s requirement that a plaintiff either file a cost bond or submit an expert report with a medical malpractice claim did not violate due process under State or Federal Constitutions and was not a “special law” in violation of the State Constitution), cert. denied, 120 S. Ct. 616 (1999).

Rose v. Doctors Hospital, 801 S.W.2d 841 (Tex. 1990) (Medical Liability and Insurance Improvement Act’s $500,000 limit on general damages against health care providers did not violate open courts or right to redress provisions of State Constitution or equal protection clauses of State or Federal Constitutions).

VIRGINIA

Pulliam v. Coastal Emergency Services of Richmond, Inc., 509 S.E.2d 307 (Va. 1999) ($1 million limit on recoveries in medical malpractice actions did not violate right to jury trial, prohibition against special legislation, or separation of powers provisions of State Constitution, or takings, due process or equal protection provisions of State or Federal Constitutions) (affirming Etheridge v. Medical Center Hospitals, 376 S.E.2d 525 (Va. 1989) (statutory limit on recoveries in medical malpractice actions did not violate due process, right to jury trial, separation of powers, prohibition against special legislation, or equal protection provisions of State Constitution)).

WEST VIRGINIA

Robinson v. Charleston Area Medical Center, Inc., 414 S.E.2d 877 (W.Va. 1991) ($1 million cap on noneconomic damage awards in medical malpractice actions did not violate equal protection, due process, or right to remedy provisions of State Constitution); Estate of Verba v. Ghaphery, 2001 WL 703840 (W. Va. June 19, 2001) (reaffirming Robinson decision).

WISCONSIN

Aicher ex rel. LaBarge v. Wisconsin Patients Compensation Fund, 613 N.W.2d 849 (Wis. 2000) (overruling Makos v. Wisconsin Masons Health Care Fund, 564 N.W.2d 662 (Wis. 1997), the court held that a statute of repose requiring medical malpractice actions to be initiated no later than five years after the date of the act or omission, or by the time the injured person reaches age of ten, whichever is later, did not violate right to remedy clause or the equal protection or due process provisions of the State Constitution).

Reforms Struck Down as Unconstitutional (after 1983)

ALABAMA

Clark and Halliburton Industrial Services Division v. Container Corp. of America, 589 So. 2d 184 (Ala. 1991) (statute allowing for periodic payments of personal injury awards over $150,000 violated State Constitutional provision guaranteeing right to jury trial).

Moore v. Mobile Infirmary Association, 592 So. 2d 156 (Ala. 1991) (statute setting $400,000 limit on noneconomic damages awards in health care liability actions violated right to jury trial and equal protection provisions of State Constitution).

Smith v. Schulte, 671 So. 2d 1334 (Ala.) (1987 statute setting $1 million aggregate limit on damages awards in health care liability actions violated right to jury trial under State Constitution), cert. denied, 517 U.S. 1220 (1996).

ARIZONA

Barrio v. San Manuel Division Hospital For Magma Copper Co., 692 P.2d 280 (Ariz. 1984) (statute of limitations which required minor injured when below age of seven to bring action for medical malpractice by the time she reached age ten violated right to remedy provision of State Constitution).

COLORADO

Austin v. Litvak, 682 P.2d 41 (Colo. 1984) (three-year statute of repose in medical malpractice actions violated equal protection provision of State Constitution insofar as the statute applied to persons whose claims were based on negligent misdiagnosis).

FLORIDA

Smith v. Department of Insurance, 507 So. 2d 1080 (Fla. 1987) (statute setting $450,000 limit on noneconomic damages awards violated access to courts provision of State Constitution).

GEORGIA

Denton v. Con-Way Southern Express, Inc., 402 S.E.2d 269 (Ga. 1991) (statute authorizing admission of collateral sources of recovery available to plaintiffs seeking special damages for tortious injury violated State Constitutional requirement of impartial and complete protection to person and property).

ILLINOIS

Bernier v. Burris, 497 N.E.2d 763 (Ill. 1986) (statute requiring pretrial submission of medical malpractice claims to panel consisting of a circuit judge, a practicing attorney, and a physician violate separation of powers provision of State Constitution).

Best v. Taylor Machine Works, Inc., 689 N.E.2d 1057 (Ill. 1997) (overturning Civil Justice Reform Amendments of 1995 in their entirety by finding that $500,000 limit on noneconomic damages award violated State Constitutional prohibition against special legislation and separation of powers provision of the State Constitution; amendments to the Joint Tortfeasor Contribution Act were arbitrary and unconstitutional; abolition of joint liability violated State Constitutional prohibition against special legislation; and access to medical records provision violated separation of powers and right to privacy provisions of State Constitution; the invalid provisions were nonseverable from the rest of the statute; therefore, the entire Act was held to be unconstitutional).

Kunkel v. Walton, 689 N.E.2d 1047 (Ill. 1997) (provision of Civil Justice Reform Amendments of 1995 regarding access to medical records held to violate separation of powers and right to privacy under State Constitution).

KANSAS

Farley v. Engelken, 740 P.2d 1058 (Kan. 1987) (abrogation of collateral source rule in health care liability actions violated equal protection clause of State Constitution); Wentling v. Medical Anesthesia Services, P.A., 701 P.2d 939 (Kan. 1985) (repealed predecessor statute held to violate equal protection provision of State Constitution).

Kansas Malpractice Victims Coalition v. Bell, 757 P.2d 251 (Kan. 1988) (Kansas Health Care Provider Insurance Availability Act provisions setting $1 million limit on aggregate damages in health care liability actions and provision requiring annuity for payments for future economic loss in all health care liability actions violated right to jury trial under State Constitution).

Thompson v. KFB Insurance Co., 850 P.2d 773 (Kan. 1993) (statute allowing evidence of collateral source benefits where claimant demands judgment for damages in excess of $150,000 violated equal protection provision of State Constitution).

KENTUCKY

McCollum v. Sisters of Charity of Nazareth Health Corp., 799 S.W.2d 15 (Ky. 1990) (five-year statute of repose for health care liability actions violated open courts provision of State Constitution).

O’Bryan v. Hedgespeth, 892 S.W.2d 571 (Ky. 1995) (statute allowing admission of evidence of collateral source payments in personal injury actions violated separation of powers provision of State Constitution).

LOUISIANA

Bourgeois v. A.P. Green Industries, Inc., 2001 WL 316005 (La. Apr. 3, 2001) (holding that Louisiana’s statute abolishing medical monitoring causes of action cannot be applied retroactively because it would deprive plaintiffs of a previously vested right); Crooks v. Metropolitan Life Insurance Co., 2001 WL 40567 (La. App. Jan. 17, 2001) (same).

MISSOURI

Strahler v. St. Luke’s Hospital, 706 S.W.2d 7 (Mo. 1986) (statute of limitations for health care liability actions violated access to courts provision of State Constitution insofar as the statute applied to minors).

NEW HAMPSHIRE

Trovato v. DeVeau, 736 A.2d 1212 (N.H. 1999) (statute limiting damages in wrongful death cases to $50,000 where the decedent was not survived by a family member violated equal protection provision of State Constitution).

NORTH CAROLINA

Anderson v. Assimos, 553 S.E.2d 63 (N.C. App. 2001) (rule requiring plaintiff to make particular certifications in medical malpractice actions violated access to courts and equal protection clauses of State Constitution).

OHIO

Gaines v. Preterm-Cleveland, Inc., 514 N.E.2d 709 (Ohio 1987) (health care liability statute of repose violated equal protection clause of State Constitution as applied to adult litigants who, following discovery, did not have adequate time to file actions).

Galayda v. Lake Hospital Systems, Inc., 644 N.E.2d 298 (Ohio 1994) (statute requiring periodic payments of future damages awards in medical malpractice suits violated right to jury trial and due process provisions of State Constitution), reconsideration denied, 644 N.E.2d 1389 (Ohio), cert. denied sub nom. Damian v. Galayda, 516 U.S. 810 (1995).

Gladon v. Greater Cleveland Regional Transit Authority, 1994 WL 78468 (Ohio App. Mar. 10, 1994) ($250,000 limit on noneconomic damages awards violated right to jury trial and equal protection provisions of State Constitution), rev’d on other grounds, 662 N.E.2d 287 (Ohio 1996).

Hardy v. VerMeulen, 512 N.E.2d 626 (Ohio 1987) (statute barring health care liability claims brought more than four years after act or omission constituting alleged malpractice occurred, as applied to bar claims of health care liability plaintiffs who did not know or could not have known of their injuries, violated right to remedy provision of State Constitution), cert. denied, 484 U.S. 1066 (1988).

Hiatt v. Southern Health Facilities, Inc., 626 N.E.2d 71 (Ohio 1994) (statute requiring certificates of merit in health care liability actions conflicted with court-promulgated Ohio Rules of Civil Procedure and was invalid and of no force and effect).

Mominee v. Scherbarth, 503 N.E.2d 717 (Ohio 1986) (statute which required health care liability actions to be brought within one year from date cause of action accrued, or four years from date alleged malpractice occurred, whichever came first, violated due process provision of State Constitution insofar as the statute applied to minors).

Morris v. Savoy, 576 N.E.2d 765 (Ohio 1991) ($200,000 limit on general damages in health care liability actions violated due process provision of State Constitution, but did not violate equal protection provision of State Constitution).

Schwan v. Riverside Methodist Hospital, 452 N.E.2d 1337 (Ohio 1983) (statute of limitations for health care liability actions, as it applied to minors, violated equal protection provision of State Constitution).

Sorrell v. Thevenir, 633 N.E.2d 504 (Ohio 1994) (statute providing offset of collateral source benefits received by plaintiff violated right to jury trial, due process, equal protection, right to open courts, and right to meaningful recovery provisions of State Constitution); Samuels v. Coil Bar Corp., 579 N.E.2d 558 (Ohio Cm. Pl. 1991) (same as applied to wrongful death actions).

OREGON

Lakin v. Senco Products, Inc., 987 P.2d 463 (Or. 1999) ($500,000 limit on noneconomic damages in personal injury and wrongful death actions arising out of common law violated right to jury trial provision of State Constitution).

RHODE ISLAND

Boucher v. Sayeed, 459 A.2d 87 (R.I. 1983) (statute creating system for processing of medical malpractice complaints violated equal protection provision of Federal Constitution).

SOUTH DAKOTA

Knowles v. Federal, 544 N.W.2d 183 (S.D. 1996) ($1 million aggregate limit on economic and noneconomic damages in health care liability actions violated State Constitutional right to substantive due process, but more limited statute capping noneconomic damages awards in health care liability actions at $500,000 remained in effect).

TEXAS

Lucas v. Federal, 757 S.W.2d 687 (Tex. 1988) ($500,000 aggregate limit on damages in health care liability actions violated open courts provision of State Constitution).

Nelson v. Krusen, 678 S.W.2d 918 (Tex. 1984) (two-year statute of limitations for medical malpractice actions violated open courts provision of State Constitution); Sax v. Votteler, 648 S.W.2d 661 (Tex. 1983) (predecessor statute violated due process guarantee set forth in open courts provision of State Constitution).

UTAH

Lee v. Gaufin, 867 P.2d 572 (Utah 1993) (provision of Utah Health Care Malpractice Act subjecting minors to two-year statute of limitations and four-year statute of repose violated uniform operation of the laws provision of the State Constitution).

WASHINGTON

DeYoung v. Providence Medical Center, 960 P.2d 919 (Wash. 1998) (eight-year statute of repose for medical malpractice actions violated privileges and immunities clause of State Consitution).

Sofie v. Fibreboard Corp., 771 P.2d 711 (Wash. 1989) (variable limit on noneconomic damages awards violated right to trial by jury under State Constitution).

WISCONSIN

Ferdon v. Wisconsin Patients Comp. Fund, 701 N.W.2d 440 (Wis. 2005). The $350,000 cap on noneconomic damages in medical malpractice actions violated the equal protection provision of the State Constitution.

Kohnke v. St. Paul Fire & Marine Insurance Co., 410 N.W.2d 585 (Wis. App. 1987) (medical malpractice statute of limitations violated right to remedy provision of State Constitution), aff’d on other grounds, 424 N.W.2d 191 (Wis. 1988).

Martin v. Richards, 531 N.W.2d 70 (Wis. 1994) (statute retroactively limiting recovery for noneconomic loss to $1,000,000 in medical liability actions violated due process clauses of State and Federal Constitutions), reconsideration denied, 537 N.W.2d 576 (Wis. 1995).

WYOMING

Hoem v. State of Wyoming, 756 P.2d 780 (Wyo. 1988) (statute requiring medical review panels in health care liability actions violated equal protection provision of State Constitution).

Reforms Unchallenged on Constitutional Grounds

Alaska

Medical Liability Reform/Noneconomic Damages Reform: SB 67 (2005); Alaska Stat. § 09.55.549. Lowers the limit on noneconomic damages in medical liability cases to $250,000. In the most severe cases involving disfigurement, severe permanent physical impairment, and wrongful death, the limit on noneconomic damages is $400,000. The previous limit on noneconomic damages ranged from $400,000 to $1 million, depending on the severity of the injuries.

Arkansas

Medical Liability Reform: Certificate of Merit: H.B. 1038 (2003); A.C.A. § 16-55-213. Requires a certificate of merit to be filed in medical malpractice cases in which expert testimony is required.

Medical Liability Reform: Damage Awards: H.B. 1038 (2003); A.C.A. § 16-55-213. Requires evidence of damages for the cost of medical expenses to be actual or paid expenses.

Medical Liability Reform: Expert Witness Testimony: H.B. 1038 (2003); A.C.A. § 16-55-213. Requires that expert medical negligence testimony come from a physician licensed in the same specialty as the defendant.

Colorado

Medical Liability Reform: Noneconomic Damages Reform: HB 03-1007 (2003); Amended C.R.S. 13-21-102.5. Limits noneconomic damages in medical malpractice cases to $300,000.

Medical Liability Reform: Vicarious Liability: HB 03-1012 (2003); Amended C.R.S. 12-36-134. Prohibits medical malpractice lawsuits against medical professional corporations including professional service corporations, limited liability companies, and registered liability partnerships.

Florida

Medical Liability Reform: Noneconomic Damages Reform: CS SB 2-D (special session) (2003); Fla. Stat. § 395.0056; Fla. Stat. § 395.1012; Amending Fla. Stat. § 396.0191; Amending Fla. Stat. § 395.0197; Repealing Fla. Stat. § 395.1098. Provides for emergency room practitioner limits on noneconomic damages of $150,000 per claimant, with an aggregate of $300,000. Provides for emergency room facility limits on noneconomic damages of $750,000 per claimant, with an aggregate of $1.5 million and full setoffs for practitioner payments. Provides for non-practitioner limits on noneconomic damages of $750,000 per claimant, with an aggregate for all claimants. Provides for practitioner limits on noneconomic damages of $500,000 per claimant, with an aggregate limit for all claimants of $1 million, but no single practitioner shall be liable for more than $500,000 regardless of the number of claimants.

Georgia

Medical Liability Reform: Expressions of Sympathy: S.B. 3 (2005). Provides that expressions of sympathy, regret, apology, etc. by healthcare providers are inadmissible as evidence and shall not constitute an admission of liability.

Medical Liability Reform: Emergency Medical Situations: S.B. 3 (2005). Provides that in claims arising out of the provision of emergency medical care against a hospital emergency department, no physician or health care provider shall be liable unless it is proven by clear and convincing evidence that the physician or health care provider’s actions showed gross negligence.

Medical Liability Reform: Noneconomic Damages Reform: S.B. 3 (2005). Limits noneconomic damages to $350,000 per healthcare provider, with an overall aggregate limit of $1.05 million.

IDAHO

Noneconomic Damages Reform: HB 92 (2003). Limits noneconomic damages to $250,000.

ILLINOIS

Medical Liability Reform: Expert Witness Standards: SB 475 (2005); Amended 735 ILCS 5/2-622. In an action against a medical professional, defines an expert witness who: (1) is board certified or board eligible in the same or similar specialty as the defendant; (2) has devoted a majority of work time to the practice, teaching, or University based research in relation to the type of care or treatment at issue in the claim; (3) is licensed in the same profession with the same class of license as the defendant if the defendant is an individual; (4) in a case against a nonspecialist, an expert shall demonstrate familiarity with the standard of care and shall provide evidence of active practice, teaching, or university research. If retired, an expert must provide evidence of completion of continuing education for three previous years. An individual must have actively practiced, taught, or engaged in university research, or any combination thereof, during the past five years to qualify as an expert witness.

Medical Liability Reform: Expressions of Sympathy: SB 475 (2005); Amended 735 ILCS 5/8-1901. Provides that expressions of grief, apology, including a statement that the healthcare provider is sorry for the outcome to the patient, is inadmissible as evidence.

Medical Liability Reform: Good Samaritan Protections: SB 475 (2005); Amended 745 ILCS 49/30. Amends the Good Samaritan Act to apply civil immunity protections to retired physicians who provide services without compensation.

Medical Liability Reform: Noneconomic Damages Reform: SB 475 (2005); 735 ILCS 5/2-1706.5. Limits noneconomic damages in medical liability cases to $500,000 per physician and $1 million per hospital.

MISSISSIPPI

Medical Liability Reform: Noneconomic Damages: H.B. 13 (2004) (special session); Amended Miss. Code Ann. § 11-1-60. Establishes a hard cap of $500,000 on noneconomic damages in medical liability cases (the $500,000 cap that was passed during a special session in 2002 contained an escalator clause which would have raised the cap to $750,000 in 2011 and $1 million in 2017).

Medical Liability Reform: Certificate of Merit: H.B.2 (special session) (2002); Amended Miss. Code Ann. § 11-46-1. Requires a plaintiff’s attorney to file a certificate of consultation, unless a plaintiff is unable to obtain an expert after three tries.

Medical Liability Reform: Government Employee Protection: H.B.2 (special session) (2002); Amended Miss. Code Ann. § 11-46-1. Includes doctors at UMC, the Veterans Affairs Board and IHL campuses in the definition of employee for protection under the Tort Claims Act.

Medical Liability Reform: Immunity: FDA-Approved Drugs: H.B.2 (special session) (2002); Amended Miss. Code Ann. § 11-1-62. Provides immunity absent active negligence to physicians and other licensed professionals who prescribe drugs in civil actions alleging damages caused by prescription drugs.

Medical Liability Reform: Good Samaritan Protection: H.B.2 (special session) (2002); Miss. Code Ann. § 43-11-16. Protects certain health care providers who provide health services at schools and physicians who render medical services under a special volunteer medical license from liability.

Medical Liability Reform: Joint and Several Liability Reform: H.B.2 (special session) (2002); Amended Miss. Code Ann. § 85-5-7. Replaces the rule of joint and several liability with the rule of proportionate liability for noneconomic damages (that is, limit a joint tortfeasor’s liability for noneconomic damages to his percentage of fault). Replaces the rule of joint and several liability with the rule of proportionate liability for economic damages, where the defendant is found to be less than 30% at fault. Replaces the rule of joint and several liability with a rule that allows a joint tortfeasor to be held up to 50% responsible for economic damages, where the defendant is found to be at least 30% at fault.

Medical Liability Reform: Noneconomic Damages Reform: H.B.2 (special session) (2002); Amended Miss. Code Ann. § 85-5-7. Limits noneconomic damages to $500,000 until July 1, 2011, $750,000 from July 1, 2011 until July 1, 2017, and $1 million after July 1, 2017, not adjusted for inflation, unless a judge were to determine that a jury could impose punitive damages. Prohibits the disclosure to a jury of the noneconomic damages limit.

Medical Liability Reform: Statute of Limitations: H.B.2 (special session) (2002); Amended Miss. Code Ann. § 15-1-36. Reduces the statute of limitations for actions against nursing homes to two years and requires 60 days of notice of any lawsuit against nursing homes.

Medical Liability Reform: Venue Reform: H.B.2 (special session) (2002); Amended Miss. Code Ann. § 11-11-3. Limits venue in medical liability actions to the county where the cause of action occurred.

Missouri

Medical Liability Reform: Expressions of Sympathy: H.B. 393 (2005); § 538.229 R.S.Mo. Prohibits statements, writings, or benevolent gestures expressing sympathy by medical providers from being admitted into evidence.

Medical Liability Reform: Noneconomic Damages: H.B. 393 (2005); § 538.205 R.S.Mo. Limits noneconomic damages in medical liability cases to $350,000 regardless of the number of defendants in the case.

Medical Liability Reform: Statute of Limitations for Minors: H.B. 393 (2005); § 516.105 R.S.Mo. Specifies that actions against physicians and other health care providers for malpractice must be brought within two years of a minor’s eighteenth birthday.

Medical Liability Reform: Volunteer Immunity: H.B. 393 (2005); § 538.228 R.S.Mo. Provides civil immunity from damages for physicians who provide uncompensated medical care (volunteer services).

Montana

Medical Liability Reform: Expressions of Sympathy: H.B. 24 (2005); Mont. Code Anno., § 26-1-814 (2010). Provides that statements of sympathy, apology, etc. by medical providers are inadmissible as evidence of liability in medical liability cases.

Medical Liability Reform: Expert Witness Standards: H.B.64 (2005); Mont. Code Anno., § 26-2-601 (2010). Provides that an expert witness: must be a licensed health care provider in at least one state; routinely treat or routinely treated within the previous five years the subject matter of the malpractice claim; and demonstrate a familiarity with the standards of care and practice as related to the subject matter of the malpractice claim. In cases involving treatment recommended by a physician, an expert witness may not testify on issues of negligence or standards of care unless the witness is also a physician. In addition, a witness qualified as an expert in a medical specialty that is unrelated to the malpractice claim may only testify if it can be proven that the standards of care and practice in the two specialties are substantially similar.

NEVADA

Medical Liability Reform: Emergency Room Liability: AB 1 (2002); Amended Nev. Rev. Stat. Ann. § 41.505. Limits damages in medical liability cases against emergency room physicians to $50,000.

Medical Liability Reform: Joint and Several Liability Reform: AB 1 (2002); Amended Nev. Rev. Stat. Ann. § 41A.045. Bars application of the rule of joint and several liability in the recovery of noneconomic damages for medical liability claims.

Medical Liability Reform: Noneconomic Damages Reform: AB 1 (2002); Nev. Rev. Stat. Ann. § 41A.031 (repealed in 2004 by initiative petition). Limits noneconomic damages in medical liability cases to $350,000, except upon a showing of “gross malpractice” or a judicial determination that there is “clear and convincing evidence” that the noneconomic award should exceed the cap.

NEW HAMPSHIRE

Medical Liability Reform/Pretrial Screening Panels: SB 214 (2005); RSA 519-B:1 through RSA 519-B:12. Creates a pre-trial screening panel requiring all medical liability cases go before a three person panel: a judge, an attorney & a health care practitioner of the same or similar specialty as the defendant. SB 214 does not restrict anyone's right to a jury trial. The panel helps plaintiffs with smaller cases because panel expenses are less. SB 214 requires the panel to decide negligence based on a preponderance of evidence (more likely than not), thus encouraging the dropping of non-meritorious cases or quicker settlement of meritorious cases. Only unanimous decisions by the panel are admissible in any future trial. S.B. 214 also created a legislative oversight committee that will look at data over the next few years to determine if the new panel system is working. The bill requires liability insurers to report certain data to the New Hampshire Department of Insurance annually.

OHIO

Medical Liability Reform: Noneconomic Damages Reform: SB 281 (2003); ORC Ann. 2323.43. Limits noneconomic damages to $350,000, with a provision to allow the limit to rise to $1 million depending on the severity of the injury and the number of plaintiffs involved in the suit.

Medical Liability Reform: Nursing Home Liability Reform: HB 412 (2002); ORC Ann. 3721.02. Reforms the state’s civil liability laws governing lawsuits against nursing home or other residential facility caretakers.

Oklahoma

Medical Liability Reform: Certificate of Merit: S.B. 629 (2003). Requires a certificate of merit to be filed with the petition.

Medical Liability Reform: Collateral Source Reform: S.B. 629 (2003). Permits the admissibility of evidence of collateral source payments in medical liability cases.

Medical Liability Reform: Noneconomic Damages: H.B. 2661 (2004). Limits noneconomic damages to $300,000 in medical liability cases provided the defendant made an offer of judgment and the amount of the verdict is less than one-and-a-half times the amount of the final offer of judgment. The limit is indexed the limit to inflation. Noneconomic damages do not include, by definition, exemplary damages. Limit on noneconomic damages may be lifted if nine or more members of the jury find by clear and convincing evidence that the defendant committed negligence or if nine or more members of the jury find by a preponderance of the evidence that the conduct of the defendant was willful or wanton. Provides, however, that the judge must, before submitting such determination to the jury, make a threshold determination that there is evidence from which the jury could reasonably make the findings set forth in the case. Provides that if the jury returns a verdict that is greater than $300,000 but less than one-and-a-half times the amount of the final offer of judgment, the court shall submit additional forms of possible verdicts to the jury covering possible determinations of negligence and/or willful and wanton conduct. Provides that limits do not apply to wrongful death action. Provisions of this section sunsets on November 1, 2010.

Medical Liability Reform: Noneconomic Damages/OB/GYN’s and Emergency Room Care: H.B. 2661 (2004). Extends the sunset provision on the limit on noneconomic damages for ob/gyn’s and emergency care situations (S.B. 629, 2003) from July 1, 2008 until November 1, 2010.

Medical Liability Reform: Noneconomic Damages Reform: S.B. 629 (2003). Limits noneconomic damages to $350,000 in cases involving pregnancy (labor, delivery, and post partum period) as well as emergency care.

Medical Liability Reform: Prejudgment Interest Rate Reform: S.B. 629 (2003). Ties the prejudgment interest rate to the average U.S. Treasury Rate of the preceding calendar year.

PENNSYLVANIA

Medical Liability Reform: Collateral Source Rule Reform: HB 1802 (2002): 40 Pa. Cons. Stat. Ann. § 1301.602. Prohibits a patient from suing for damages that were paid by a health insurer.

Medical Liability Reform: Periodic Payment of Future Damages: HB 1802 (2002): 40 Pa. Cons. Stat. Ann. § 1301.832-A. Allows for the periodic payment of future medical costs exceeding $100,000.

Medical Liability Reform: Statute of Limitations: HB 1802 (2002). Establishes a seven-year statute of limitations on medical liability actions.

South Carolina

Medical Liability Reform: Expert Witness Standards: S. 83 (2005). In an action against a professional (such as physicians, medical professionals, architects, CPAs, etc.), increased the standard for admitting expert witness testimony by defining an expert witness as one who: (1) is qualified as to the acceptable standard of conduct of the professional whose conduct is at issue; (2) is licensed by an appropriate regulatory agency; (3) is board certified; and (4) has actual professional knowledge based on active practice for at least three to five years, has taught for at least half of his professional time for at least three to five years, or any combination thereof for at least three to five years. In such actions against a professional, the plaintiff must file an affidavit of an expert witness which specifies at least one negligent act or omission and the factual bases for each claim, unless the basis of the claim does not require specialized knowledge or experience to evaluate the conduct of the defendant. Provided that in any other civil action, expert witness is defined as one who has scientific, technical, or other specialized knowledge which may assist the trier of fact in understanding evidence and determining a fact or issue in the case.

Medical Liability Reform: Emergency Situations: S. 83 (2005). Provides that a physician is not liable for claims arising out of an emergency situation unless the physician was grossly negligent. Provided that a physician is not liable in a claim arising out of obstetrical care rendered in an emergency situation where there is no previous doctor/patient relationship or where the patient has not received prenatal care, unless the physician was grossly negligent.

Medical Liability Reform: Mediation: S. 83 (2005). Requires that prior to filing an action, the plaintiff must file a Notice of Intent to File Suit, and the parties must participate in a court-supervised mediation. If the matter is not resolved through mediation, the plaintiff may initiate the action within 60 days of the end of mediation or prior to the expiration of the statute of limitations, whichever is later.

Medical Liability Reform: Noneconomic Damages: S. 83 (2005). Limits noneconomic damages in medical liability cases to $350,000 per provider, with an overall aggregate limit of $1.05 million.

Texas

Medical Liability Reform: Noneconomic Damages Reform: H.B. 4 (2003). Limits the award of noneconomic damages in medical malpractice cases to $250,000 against all doctors and health care practitioners and a $250,000 per-facility cap against health care facilities such as hospitals and nursing homes, with an overall cap of $500,000 against health care facilities, creating, in effect, an overall limit of noneconomic damages in medical malpractice cases of $750,000.

Utah

Medical Liability Reform: Arbitration: S.B. 138 (2003). Provides that physicians are allowed to withhold services, except in emergencies, if patient does not consent to arbitration (oral and written consent).

UTAH

Medical Liability Reform: Nursing Home Care: HB 112 (2002). Adds “health care facility” to the definition of “health care provider” in the Health Care Malpractice Act so that the state’s medical liability reforms apply to nursing care facilities and residential assisted living facilities.

VIRGINIA

Medical Liability Reform: Expert Witness Testimony: HB 1906 (2003). Limits the number of expert witnesses that can be called to testify in medical malpractice cases.

Medical Liability Reform: Sound Science Reform: HB 37 (2002). Clarifies that: (1) a treating physician can be called to testify regarding facts, diagnosis and treatment plan of his patient, and (2) a lawyer and practitioner of the healing arts may contact each other for a limited number of purposes. Some judges had previously barred physicians from providing such testimony.

WASHINGTON

Medical Liability Reform: Expressions of Sympathy: H.B. 2292 (2006). Provides that expressions of sympathy, regret, apology, etc. by healthcare providers are inadmissible as evidence and shall not constitute an admission of liability.

Medical Liability Refor: Statute of Repose: H.B. 2292 (2006). Reenacts the eight-year statute of repose for medical liability cases.

Medical Liability Reform: Voluntary Arbitration: H.B. 2292 (2006). Allows parties in an action to elect to submit the dispute to arbitration.

Medical Liability Reform: Collateral Source Rule: H.B. 2292 (2006). Provides for the admissibility of evidence that the plaintiff has already been compensated for the injury from any source except for the assets of the plaintiff, plaintiff’s representative, or the plaintiff’s immediate family. Plaintiff may also present evidence of an obligation to repay any compensation.

Medical Liability Reform: Frivolous Lawsuits: H.B. 2292 (2006). Provides that an attorney filing a claim must certify that to the best of the party’s or attorney’s knowledge, the claim is well grounded in fact and is warranted by existing law or good faith arguments. If an attorney is found in violation of this rule, the court may impose an appropriate sanction to include an order to pay defendant costs, including a reasonable attorney fee.

WEST VIRGINIA

Medical Liability Reform: Disciplinary Reform: H.B. 2122 (2003). Requires that the Board of Medicine investigate claims after three judgments or five settlements within five years.

Medical Liability Reform/ Expressions of Sympathy: HB 3174 (2005). ProvideS that no statement, affirmation, gesture or conduct of a healthcare provider who provided healthcare services to a patient, expressing apology, sympathy, commiseration, condolence, compassion or a general sense of benevolence, to the patient, a relative of the patient or a representative of the patient and which relate to the discomfort, pain, suffering, injury or death of the patient shall be admissible as evidence of an admission of liability or as evidence of an admission against interest in medical liability civil actions.

Medical Liability Reform/Innocent Prescriber: HB 2011 (2005). Provides that no health care provider is liable to a patient or third party for injuries sustained as a result of the ingestion of a prescription drug or use of a medical device that was prescribed or used by a healthcare provider in accordance with instructions approved by the U.S. Food and Drug Administration regarding dosage and administration of the drug, the indications for which the drug should be taken or device should be used, and the contraindications against the drug or using the device. The liability exemption does not apply if: (1) the health care provider had actual knowledge that the drug or device was inherently unsafe for the purpose for which it was prescribed or used or (2) a manufacturer of such drug or device publicly announces changes in the dosage or administration of such drug or changes in contraindications against taking the drug or using the device and the health care provider fails to follow such publicly announced changes and such failure proximately caused or contributed to the plaintiff's injuries or damages.

Medical Liability Reform: Joint and Several Liability: H.B. 2122 (2003). Provides that liability is several among defendants who go to trial, but does not take into account settling defendant’s liability.

Medical Liability Reform: Noneconomic Damages Reform: H.B. 2122 (2003). Limits noneconomic damages to $250,000 to $500,000, depending on the severity of the injuries. Limits trauma care awards to $500,000.

WISCONSIN

Medical Liability Reform: Noneconomic Damage Limits: A.B. 1073 (2006). Limits noneconomic damages in medical liability cases to $750,000.

WYOMING

Medical Liability Reform: Good Samaritan Protection: H.B.2122 (2003). Provides immunity from liability for volunteer health care professionals at nonprofit health care facilities.