MEDICAL LIABILITY REFORM
PROBLEM: In state civil justice systems that lack reasonable limits on liability, multi-million dollar jury awards and settlements in medical liability cases have forced many insurance companies to either leave the market or substantially raise costs. Increasingly, physicians in these states are choosing to stop practicing medicine, abandon high-risk parts of their practices, or move their practices to other states.
ATRA’S POSITION: To help bring a degree of predictability and fairness to the civil justice system that is critical to solving the growing medical access and affordability crisis, ATRA recommends a medical liability reform packages that includes: (1) a $250,000 limit on noneconomic damages; (2) a sliding scale for attorney’s contingent fees; (3) periodic payment of future damages; and (4) abolition of the collateral source.
OPPOSITION: The personal injury bar likes to argue that only insurance companies are to blame for the current medical liability crisis. Pointing to significant declines in the stock market, they blame insurance companies for raising rates to make up for allegedly irresponsible investing practices. But market fluctuations cannot fully explain the sharp increases in medical liability insurance pricing, especially since insurance companies invest only 13% of their total investments in stocks. A better explanation of why insurance companies have raised rates is that they have had to cover the cost of increased claim payments, which have risen almost three times the rate of inflation in recent years.
STATE ENACTMENTS
ALABAMA
Medical Liability Reform: Damages Limits: (1987). Limits the award of damages in medical liability cases to $1 million. The 1987 statute setting a $1 million aggregate limit on damages awards in health care liability actions violated the right to jury trial under the State Constitution. Smith v. Schulte, 671 So. 2d 1334 (Ala.), cert. denied, 517 U.S. 1220 (1996).
Medical Liability Reform: Periodic Payment of Future damages: Ala. Code § 6-5-486. Provides discretion to judges to order judgments over $100,000 to be paid in monthly installments. A similar statute permitting the periodic payment of future damages was held unconstitutional in Clark and Halliburton v. Contain Corp., 589 So. 2d 184 (Ala. 1991), but the Alabama Supreme Court has not addressed the validity of the above-cited statute.
Medical Liability Reform: Periodic Payment of Future Damages: Ala. Code § 6-5-543. Requires defendants to pay a lump sum of $150,000 in medical liability cases, where future damages exceed $150,000, and the remainder in periodic payments. The statute allowing for periodic payments of personal injury awards over $150,000 violated the State Constitutional provision guaranteeing the right to jury trial. Clark and Halliburton Industrial Services Division v. Container Corp. of America, 589 So. 2d 184 (Ala. 1991).
Medical Liability Reform: Periodic Payment of Future Damages: (1987). Permits judges to order the payment of damages over a period of 15 years when it is in the best interest of both parties. The Alabama Supreme Court held the periodic payment provision unconstitutional in Billy Ray Clark and Halliburton Industrial Services Division v. Container Corp. of America Inc., No. 1900325, September 27, 1991.
Medical Liability Reform: Procedure: (1987). Establishes counter lawsuit procedures.
Medical Liability Reform: Sound Science: (1987). Provides qualifications for expert witnesses in medical liability cases. Abolishes the “scintilla” rule and substitutes the “substantial evidence” rule. (Alabama was the only state still using the scintilla of evidence rule.)
Medical Liability Reform: Sound Science Reform: SB 194 (1996); Amended Ala. Code § 6-5-548, § 6-5-549. Establishes parameters for “expert witnesses” in medical liability cases and provides that limits of liability insurance coverage for a health care provider are not discoverable. The 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. McGlothren v. Eastern Shore Family Practice, P.C., 742 So. 2d 173 (Ala. 1999).
Medical Liability Reform: Wrongful Death: (1987). Limits damages in wrongful death actions to $1 million.
Noneconomic Damages Reform: (1987). Limits the award of noneconomic damages to $400,000. The statute setting a $400,000 limit on noneconomic damages awards in health care liability actions violated the right to a jury trial and equal protection provisions of the State Constitution. Moore v. Mobile Infirmary Association, 592 So. 2d 156 (Ala. 1991).
ALASKA
Medical Liability Reform: Contingent Fee Reform: Alaska Stat. § 9.60.080. Requires that contingent fees be calculated exclusive of punitive damages.
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.
Medical Liability Reform: Vicarious Liability: HB 58 (1997); Amending Alaska R. Civ. Proc. 16.1; Alaska R. Civ. Proc. 26; Alaska R. Civ. Proc. 41; Alaska R. Civ. Proc. 49; Alaska R. Civ. Proc. 58; Alaska R. Civ. Proc. 68; Alaska R. Civ. Proc. 72.1; Alaska R. Civ. Proc. 82; Alaska R. Civ. Proc. 95; D. Ak. LR 1; D. Ak. LR 4; Alaska R. Evid. 702; Alaska R. App. Proc. 511.. Creates partial immunity for hospitals from vicarious liability for some physicians’ actions. The reform 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). Evans v. State, 2002 WL 1998141 (Alaska Aug. 30, 2002).
Noneconomic Damages Reform: HB 58 (1997): Alaska Stat. § 9.17.010. Limits noneconomic damages awarded for most single injuries or deaths to the greater of $400,000 or the injured person’s life expectancy in years multiplied by $8,000. Limits noneconomic damages for personal injuries involving permanent physical impairment or severe disfigurement to the greater of $1,000,000 or the person’s life expectancy in years multiplied by $25,000. The reform 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). Evans v. State, 2002 WL 1998141 (Alaska Aug. 30, 2002).
Noneconomic Damages Reform: SB 337 (1986). Establishes a $500,000 cap on noneconomic damages for cases not involving physical impairment or disfigurement.
Offer of Judgment: HB 58 (1997). Strengthens the offer of judgment rule. The reform 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). Evans v. State, 2002 WL 1998141 (Alaska Aug. 30, 2002).
Periodic Payment of Future Damages: SB 337 (1986): Allows a court to order periodic payments of future damages.
ARIZONA
Medical Liability Reform: Immunity for Free Health Care Services: HB 2556 (1990). Limits physician and health care facility liability related to the delivery of infants under certain emergency care situations if the patient was not previously treated for pregnancy by the physician, a group practice of the physician, or the physician assistant and nurse midwife with whom the physician had an agreement. (Unless elements are proved by clear and convincing evidence, the licensed health care facility is not liable to the female patient, the child or children delivered or their families for medical malpractice related to labor or delivery.)
Medical Liability Reform: Periodic Payment of Future Damages: HB 2123 (1989); Ariz. Rev. Stat. §§ 12‑582, 12‑592. Requires a court to allow the periodic payment of periodic damages unless the opposing party can show good cause why payments should not be made periodically.
Medical Liability Reform: Postjudgment Interest Reform: HB 2162 (1994); A.R.S. § 12-352. Sets postjudgment interest rates on medical liability actions (including those resolved through ADR) at the federal postjudgment interest rate, with a floor of 3% and a ceiling of 9%.
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.
Medical Liability Reform: Periodic Payment of Future Damages: Ark. Stat. Ann. § 16‑114‑200. Allows a court, at the request of either party, to order the periodic payment of future damages exceeding $100,000.
Medical Liability Reform: Statute of Limitations Reform: HB 1556 (1991); Amended A.C.A. § 16-114-203. Reduces the statute of limitations in cases by minors against OB-GYNs from nineteen years to nine years. Sets the statute of limitations on an action that accrued before a child’s ninth birthday at her twelfth birthday. Sets the statute of limitations for all other causes of action at 2 years from the accrual of the cause of action.
CALIFORNIA
Medical Liability Reform: Arbitration: The Medical Injury Compensation Reform Act (MICRA) (1975). Allows patients and physicians to contract for binding arbitration.
Medical Liability Reform: Collateral Source Rule Reform: The Medical Injury Compensation Reform Act (MICRA) (1975): Cal. Civ. Code § 3333.1. Permits the admissibility of evidence of collateral source payments and amounts paid to secure the benefit. The collateral source rule reform statute does not violate the equal protection or due process provisions of the State or Federal Constitutions. Fein v. Permanente Medical Group, 695 P.2d 665 (Cal.), appeal dismissed, 474 U.S. 892 (1985).
Medical Liability Reform: Contingent Fee Reform: The Medical Injury Compensation Reform Act (MICRA) (1975): Cal. Bus. & Prof. Code § 6146(a). Limits contingent fees in medical liability cases to 40% of the first $50,000 recovered, 33.3% of the next $50,000, and 15% of any amount exceeding $600,000.
Medical Liability Reform: Noneconomic Damages Reform: The Medical Injury Compensation Reform Act (MICRA) (1975): Cal. Civ. Code § 333.2. Limits noneconomic damages in medical liability cases to $250,000. The $250,000 limit on noneconomic damages in medical liability actions does not violate the equal protection or due process provisions of the State or Federal Constitutions. Fein v. Permanente Medical Group, 695 P.2d 665 (Cal.), appeal dismissed, 474 U.S. 892 (1985).
Medical Liability Reform: Periodic Payment of Future Damages: The Medical Injury Compensation Reform Act (MICRA) (1975): Cal. Code of Civ. Proc. § 667.7. Permits the periodic payment of judgments in excess of $50,000. The statute providing for periodic payment of “future damages” in medical malpractice actions, rather than lump-sum payments, does not violate the due process or equal protection provisions of the State Constitution. American Bank and Trust Co. v. Community Hospital of Los Gatos-Saratoga, Inc., 683 P.2d 670 (Cal. 1984).
COLORADO
Medical Liability Reform: Arbitration: SB 143 (1988): Permits binging voluntary arbitration.
Medical Liability Reform: Certificate of Merit and Immunity for “Good Samaritans:” HB 1065 (1990). Modifies the certificate of review process in medical liability actions to establish the fact that professionals review only the facts of the case. Amends the "Good Samaritan" statute to provide that hospitals and other health care institutions may also be places of emergency immunity.
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.
Medical Liability Reform: Noneconomic Damages Reform: SB 143 (1988): Colo. Rev. Stat. § 13-64-302. Limits the total award of damages to $1,000,000, of which no more than $250,000 can be for noneconomic damages. The $250,000 limit on noneconomic damages in medical liability actions is constitutional. Scholz v. Metropolitan Pathologists, P.C., No. 92‑8A277, Co. Sup. Ct., April 26, 1993.
Medical Liability Reform: Punitive Damages Reform: HB 1069 (1990). Provides that punitive damages shall not be alleged in a professional negligence suit until discovery is substantially completed. Provides that discovery cannot be reopened without an amended pleading. Provides that physicians cannot be held liable for punitive damages because of the bad outcome of a prescription medication as long as it was administered in compliance with current FDA protocols. Prohibits punitive damages from being assessed against physicians because of the act of another unless he directed the act or ratified it.
Medical Liability Reform: Good Samaritan Protection: HB 1071 (1999); .R.S. 13-21-115.5. Provides immunity for licensed physicians from civil liability while performing volunteer services.
Medical Liability Reform: Periodic Payment of Future Damages: SB 143 (1988): Colo. Rev. Stat. § 13‑64‑203. Requires a court to allow the periodic payment of future damages exceeding $150,000 in medical liability cases.
Noneconomic Damages Reform: SB 67 (1986). Limits the award of noneconomic damages to $250,000, unless the court finds justification by “clear and convincing” evidence for a larger award not to exceed $500,000. The $250,000 limit on noneconomic damages in medical liability actions is constitutional. Scholz v. Metropolitan Pathologists, P.C., No. 92‑8A277, Co. Sup. Ct., April 26, 1993.
CONNECTICUT
Medical Liability Reform: Contingent Fee Reform: Conn. Gen. Stat. Ann. § 52‑251c. Limits contingent fees in medical liability cases to 33.3 % of the first $300,000 recovered, 25% of the next $300,000, 20% of the next $300,000, 15% of the next $300,000, and 10% of any amount exceeding $1.2 million.
Periodic Payment of Future Damages: HB 6134 (1986): Conn. Gen. Stat. Ann. § 52‑225d. Mandates the periodic payment of future economic damages exceeding $200,000.
DELAWARE
Medical Liability Reform: Collateral Source Reform: Del. Code Ann. tit. 18 § 6862. Permits the admissibility of evidence of collateral source payments in medical liability actions.
Medical Liability Reform: Contingent Fee Reform: Del. Code Ann. tit. 18 § 6865. Limits contingent fees in medical liability cases to 35% of the first $100,000 recovered, 25% of the next $100,000, and 10% of the balance.
Medical Liability Reform: Periodic Payment of Future Damages: Del. Code Ann. tit. 18 § 6864. Allows a court to order the periodic payment of damages in medical liability cases after deducting expenses for attorneys’ fees and costs, past health care, and pain and suffering.
FLORIDA
Medical Liability Reform: Contingent Fee Reform: Fla. Atty. Conduct Reg. § 4-1.5(f)(4)(b). Limits contingent fees in medical liability cases that settle before filing an answer or appointing an arbitrator to 33.3% of awards up to $1 million, 30% of awards between $1 million and $2 million, and 20% of awards exceeding $2 million. Limits contingent fees in medical liability cases that do not settle before an answer is filed to 40% of awards up to $1 million, 30% of awards between $1 and $2 million, and 20% of awards exceeding $2 million. Limits contingent fees in medical liability cases, where liability is admitted and only damages are contested, to 33.3% of awards up to $1 million, 20% of awards between $1 and $2 million, and 15% of awards exceeding $2 million. Limits fees in medical liability cases that are appealed to an extra 5% of what is otherwise allowed.
Medical Liability Reform: Emergency Room Liability: CS/SB6 (1988). Requires the plaintiff to demonstrate “reckless disregard” in order to recover damages against emergency room and trauma center health care providers.
Medical Liability Reform: Medicaid Third Party Liability: HB 3077 (1988). Reverses amendments made in 1994 to the Medicaid Third-Party Liability Act. Restores the provisions governing third-party reimbursement of Medicaid expenses to their condition prior to the 1994 Regular Session.
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.
Medical Liability Reform: Noneconomic Damages: CS/SB6 (1988): Fla. Stat. §§ 766.207, 766.209. Limits noneconomic damages in medical liability cases to $250,000 in arbitration. Limits noneconomic damages in medical liability cases to $350,000, if the plaintiff refuses to arbitrate. Sets no limit on noneconomic damages in medical liability cases, where neither party demands binding arbitration, or where the defendant refuses to arbitrate.
Medical Liability Reform: Nursing Homes: Mediation: HB 775 (1999) Amending Fla. Stat. § 44.102; Amending Fla. Stat. § 400.023; Amending Fla. Stat. § 400.429; Amending Fla. Stat. §400.629. Provides incentives for parties to mediate nursing home litigation.
Medical Liability Reform: Nursing Homes: Punitive Damages: SB 1202 (2001); Fla. Stat. § 400.0233; Amending Fla. Stat. § 400.0073; Amending Fla. Stat. § 400.021; Amending 400.023. Requires a plaintiff to prove punitive damages by clear and convincing evidence in cases against nursing home facilities. Limits punitive damages against nursing home facilities to the greater of three times the award of compensatory damages or $1 million. Limits punitive damages against nursing home facilities to the greater of $4 million or four times the award of compensatory damages, where conduct is proven to be motivated by financial gain. Sets no limit on the award of punitive damages against nursing home facilities, where intentional harm is proven.
Medical Liability Reform: Nursing Homes: Statute of Limitations: SB 1202 (2001); Fla. Stat. § 400.0233; Amending Fla. Stat. § 400.0073; Amending Fla. Stat. § 400.021; Amending 400.023. Requires claims against nursing home facilities to be filed within 2 years from the time the incident is discovered.
Medical Liability Reform: State-Run Compensation Fund: CS/SB 6 (1988). Establishes the Florida Birth Related Neurological Injury Compensation Act through assessment of $250 against each licensed physician in the state, $50 per live birth for each hospital, and $5,000 for each physician who desires to participate in the program.
Noneconomic Damages Reform: SB 465 (1986). Limits noneconomic damages to $450,000. The limit on noneconomic damages is unconstitutional. Smith v. Department of Insurance, 507 So.2d 1080 (Fla. 1987).
Periodic Payment of Future Damages: SB 465 (1986): Fla. Stat. § 768.78 (2). Allows for the periodic payment of future economic damages exceeding $250,000.
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.
HAWAII
Medical Liability Reform: Contingent Fee Reform: Haw. Rev. Stat. § 607-15.5. Limits contingent fees in medical liability cases to a “reasonable amount,” as determined by the court.
Noneconomic Damages Reform: SB S1 (special session) (1986): Sunset provision (SB 1529) enacted in 1991: Haw. Rev. Stat. §§ 663-8.7, 663-10.9(2). Limits noneconomic damages for physical pain and suffering to $375,000.
IDAHO
Noneconomic Damages Reform: HB 92 (2003). Limits noneconomic damages to $250,000.
Noneconomic Damages Reform: HB 574 (1990). Removes the 1992 sunset to the $400,000 limit on non-economic damages enacted in 1987.
Noneconomic Damages Reform: SB 1223 (1987): Idaho Code Ann. § 6-1603. Limits the award of noneconomic damages to $400,000. Provides a sunset in June 1992. The $400,000 cap on noneconomic damages in personal injury and wrongful death actions did not violate the right to jury trial, constitute special legislation, or violate the separation of powers doctrine under the State Constitution. Kirkland v. Blaine County Medical Center, 4 P.3d 1115 (Idaho 2000).
Periodic Payment of Future Damages: Idaho Code Ann. § 6-1602. Allows for the periodic payments of future payments exceeding $100,000, except in cases involving an intentional tort, fraud, dishonesty, malice, willfulness, or gross negligence.
ILLINOIS
Medical Liability Reform: Contingent Fee Reform: 735 Ill. Comp. Stat Ann. § 5/2 –1114. Limits contingent fees to 33.3% of the first $150,000 recovered, 25% of the next $850,000 recovered, and 20% of any amount recovered over $1 million. The statute limiting the amount of contingent fees that attorneys representing medical liability plaintiffs may recover, but providing that court may review the fee agreement and approve a larger fee in an appropriate case, did not violate the access to courts provision of the State Constitution or equal protection, or due process provisions of the State or Federal Constitutions, and did not constitute prohibited special legislation. Bernier v. Burris, 497 N.E.2d 763 (Ill. 1986).
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.
Noneconomic Damages Reform: HB 20 (1995). Limits noneconomic damages to $500,000. The reform violates the State Constitutional prohibition against special legislation and separation of powers provision of the State Constitution. Best v. Taylor Machine Works, Inc., 689 N.E.2d 1057 (Ill. 1997).
Periodic Payment of Future Damages: 735 Ill. Comp. Stat Ann. § 5/2 –1705. Permits the periodic payment of future damages exceeding $250,000 in medical liability cases. Provides that if the defendant requests the periodic payment of future damages, she must demonstrate that security for the lesser of past and future damages or $500,000 can be provided. The statute providing for periodic payments of future medical liability damages awards did not violate the equal protection provisions of the State or Federal Constitutions and did not constitute prohibited special legislation. Bernier v. Burris, 497 N.E.2d 763 (Ill. 1986).
INDIANA
Medical Liability Reform: Contingent Fee Reform: Ind. Code Ann. § 34-18-18-1. Limits contingent fees in medical liability cases to 15% of the recovery that comes from the Patient’s Compensation Fund.
Medical Liability Reform: Damages Limits: Ind. Code Ann. § 34-18-14-3. Limits the total amount recoverable in medical liability cases to $750,000 for acts that occur before July 1, 1999, and $1,250,000 for acts that occur after July 1, 1999. Requires any amount awarded in excess of these limits to be paid from the Patient’s Compensation Fund.
Medical Liability Reform: Periodic Payment of Future Damages: Ind. Code Ann. § 34-18-14-4. Permits, but does not require, a court to order the periodic payment of future damages in medical liability cases.
IOWA
Medical Liability Reform: Contingent Fee Reform: Iowa Code Ann. § 147.138. Provides that a court in medical liability cases “shall determine” the reasonableness of the contingency fee.
Medical Liability Reform: Collateral Source Rule Reform: Iowa Code Ann. § 147.136. Provides for awards in medical liability cases to be offset by collateral sources. The failure of the statute abrogating the collateral source rule in specified situations involving medical and hospital malpractice claims to distinguish between insured and self-insured institutions did not violate the equal protection clause of the Federal Constitution. Lambert v. Sisters of Mercy Health Corp., 369 N.W.2d 417 (Iowa 1985).
Noneconomic Damages Reform: HF 2525 (2000). Prohibits a motorist, passenger or pedestrian from collecting noneconomic damages for injuries sustained in an automobile crash caused during the commission of a felony.
Periodic Payment of Future Damages: SB 2265 (1986): Iowa Code Ann. § 668.3(7). Allows a court to order the periodic payment of future damages, unless it would be inequitable or there are insufficient guarantees of future collectability.
KANSAS
Medical Liability Reform: Periodic Payment of Future Damages: Kan. Stat. Ann. § 60-2609. Allows a judge to order the periodic payment of future damages in medical liability cases against any health care provider.
Noneconomic Damages Reform: HB 2692 (1988): Kan. Stat. Ann. §§ 60-1902, 60-1903. Limits noneconomic damages to $250,000. The Kansas Health Care Provider Insurance Availability Act provision setting a $250,000 limit on noneconomic losses in health care liability actions did not violate the right to a jury trial or due process provisions of the State Constitution. Samsel v. Wheeler Transport Services, Inc., 789 P.2d 541 (Kan. 1990).
Noneconomic Damages Reform: HB 2692 (1987). Limits the award of damages for pain and suffering to $250,000.
LOUISIANA
Medical Liability Reform: Certificate of Merit: HB 502 (1991). Requires a licensed psychologist's or psychiatrist's diagnosis of any mental stress injuries that are not manifested by a physical injury.
Medical Liability Reform: Damages Reform: La. Rev. Stat. Ann. §40:1299.42. Limits total damages in medical liability cases to $500,000, excluding future medical care. The statute setting a $500,000 limit on general damages in medical liability cases did not violate the equal protection provisions of the State or Federal Constitutions. Butler v. Flint Goodrich Hospital of Dillard University, 607 So. 2d 517 (La. 1989).
Medical Liability Reform: Good Samaritan Protection: SB 507 (1999); Amended La. R.S. 9:2799.5. Protects healthcare providers from liability for their voluntary services at community health clinics or community pharmacies.
Medical Liability Reform: Medical Monitoring: HB 1784 (1999); Amended La. C.C. Art. 2315. Overturns the Supreme Court’s decision in Bourgeois v. Green, which allowed someone exposed to a “hazardous” substance to recover expenses for medical monitoring even if there is no evidence of injury. Louisiana’s statute abolishing medical monitoring causes of action cannot be applied retroactively because it would deprive plaintiffs of a previously vested right. Bourgeois v. A.P. Green Industries, Inc., 2001 WL 316005 (La. Apr. 3, 2001); Crooks v. Metropolitan Life Insurance Co., 2001 WL 40567 (La. App. Jan. 17, 2001).
Medical Liability Reform: Periodic Payment of Future Damages: La. Rev. Stat. Ann. § 40: 1299.44. Permits the periodic payment of future medical expenses to be paid out of a patient compensation fund.
MAINE
Medical Liability Reform: Affirmative Defenses: LD 2513 (1990). Establishes a five-year medical liability demonstration project within the medical specialty areas of anesthesiology, emergency medicine and obstetrics and gynecology. Provides the Board of Registration in Medicine and specialty advisory committees will develop practice parameters and risk management protocols that may be used by the physician as an affirmative defense in a claim for professional negligence.
Medical Liability Reform: Baby Delivery: LD 2513 (1990). Establishes a rural medical access program to increase access to physicians who deliver babies in under-served areas of the state. Provides that the projected savings from the revision of the collateral source rule will go into a fund that the Superintendent of Insurance will use to reduce the premiums of the physicians delivering babies in under-served areas of the state.
Medical Liability Reform: Contingent Fee Reform: Me. Rev. Stat. Ann. tit. 24 § 2961. Limits contingent fees in professional liability cases to 33.3% of the first $100,000 recovered, 25% of the next $100,000 recovered, and 20% of any amount recovered over $2 million. Permits a judge to allow fees in excess of these amounts in special circumstances.
Medical Liability Reform: Emergency Room Physicians: LD 2520 (1988). Establishes limited immunity for emergency room physicians
Medical Liability Reform: Noneconomic Damages Reform: Me. Rev. Stat. Ann. tit. 24-A § 4313. Limits noneconomic damages against a carrier of a health plan to $400,000.
Medical Liability Reform: Peer Review: LD 2520 (1988). Increases protections for medical peer review and confidentiality.
Periodic Payment of Future Damages: Me. Rev. Stat. Ann. tit. 24 § 2951. Mandates that a court allow the periodic payment if future damages exceeding $250,000.
MARYLAND
Medical Liability Reform: Arbitration: Md. Cts. & Jud. Pro. § 3-2A-07. Provides that if a legal fee is in dispute, an arbitration panel or a court will determine if the fee is reasonable.
Medical Liability Reform: Certificate of Merit: HB 188 (1998); Amended Md. COURTS AND JUDICIAL PROCEEDINGS Code Ann. § 3-2C-02. Requires a certificate of merit by a qualified expert to be filed in claims against licensed professionals.
Noneconomic Damages Reform: Uninsured Drivers: HB 714 (2001); Amended Md. TRANSPORTATION Code Ann. § 17-107. Provides that an individual driving a motor vehicle that is not covered by insurance is considered to have waived the right to recover noneconomic damages under specified circumstances.
Noneconomic Damages Reform: Wrongful Death: SB 283 (1994): Md. Cts. & Jud. Pro. §11-108. Limits noneconomic damages in wrongful death actions to $500,000. In cases where there are two or more beneficiaries, the limit is $700,000. The reform somewhat counters the effect of the Streidel decision, which held that Maryland's $350,000 limit on noneconomic damages did not apply in wrongful death actions.
Noneconomic Damages Reform: Public Entity Lawsuits: SB 237 (1987). Limits the award of noneconomic damages in public entity lawsuits to $200,000 per person and $500,000 per incident.
Noneconomic Damages Reform: SB 558 (1986): Md. Cts. & Jud. Pro. §11-108. Limits the award of noneconomic damages to $500,000. The Court of Special Appeals of Maryland upheld the constitutionality of the noneconomic damages limit in Potomac Electric Co. v. Smith, 79 Md. App. 591, 558 A.2d 768 1989. The $350,000 limit on noneconomic damages in personal injury actions did not violate the equal protection or right to jury trial provisions of the State Constitution. Murphy v. Edmonds, 601 A.2d 102 (Md. 1992).
Periodic Payment of Future Damages: SB 558 (1986): Md. Cts. & Jud. Pro. § 11-109. Allows a court to order the periodic payment of future damages.
MASSACHUSETTS
Medical Liability Reform: Collateral Source Reform: Mass. Gen. Laws Ann. Ch. 231 § 60-G. Provides for awards to be offset by collateral sources, less any premiums paid by the claimant to secure those benefits.
Medical Liability Reform: Contingent Fee Reform: Mass. Gen. Laws Ann. Ch. 231 § 60-I. Limits contingent fees in medical liability cases to 40% of the first $150,000 recovered, 33.3% of the next $150,000 recovered, 30% of the next $200,000 recovered, and 25% of any amount over $500,000 recovered.
Medical Liability Reform: Noneconomic Damages Reform: Mass. Gen. Laws Ann. Ch. 231 § 60-H. Limits noneconomic damages in medical liability cases to $500,000, unless the claimant can show “a substantial or permanent loss or impairment of a bodily function or substantial disfigurement.”
Medical Liability Reform: Periodic Payment of Future Damages: Mass. Gen. Laws Ann. Ch. 231 § 60-F. Requires juries to state in the verdict what portion of the award is for future damages, but does not provide for periodic payments.
MICHIGAN
Medical Liability Reform: Collateral Source Rule Reform: Mich. Comp. Laws § 600.6303. Provides for medical liability awards to be offset by collateral sources, less any premiums paid to obtain the benefit.
Medical Liability Reform: Contingent Fee Reform: Mich. Ct. R. 8.121. Limits contingent fees in medical liability cases for personal injury or death to 33.3% of the amount recovered.
Medical Liability Reform: Noneconomic Damages: SB 270/H 2 (1993): Mich. Comp. Laws § 600.1483. Limits the award of noneconomic damages in medical liability cases to $280,000 for ordinary occurrences, and $500,000 if the claimant has suffered brain damage, spinal cord damage, damage to the reproductive system which prevents procreation, or injury to cognitive ability that leaves the plaintiff unable to live alone.
Medical Liability Reform: Periodic Payment of Future Damages: Mich. Comp. Laws § 600.6307. Requires that damages in excess of $250,000 in medical liability cases are to be satisfied by the purchase of an annuity contract.
Periodic Payment of Future Damages: HB 5154 (1986). Mandates the periodic payment of future damages exceeding $250,000.
MINNESOTA
Medical Liability Reform: Contingent Fee Reform: Minn. Stat. Ann. § 548.36. Requires that contingent fees in medical liability cases be based on the award adjusted for collateral source benefits.
Medical Liability Reform: Generally Accepted Practices: HF 2800 (1992). Provides an absolute defense against medical liability when doctors adhere to practice parameters. Provides that non-compliance to practice parameters may not be used as a basis for a cause of action.
Medical Liability Reform: Periodic Payment of Future Damages: Minn. Stat. Ann. § 549.25. Allows a court to order the periodic payment of medical liability awards exceeding $100,000 after a hearing to determine the best interests of the claimant.
Noneconomic Damages Reform: SB 2078 (1986). Limits the award of damages for loss of consortium, emotional distress, or embarrassment to $400,000. The $400,000 limit on damages for embarrassment, emotional distress, and loss of consortium did not violate “certain remedy” clause of the State Constitution. Schweich v. Ziegler, Inc., 463 N.W.2d 722 (Minn. 1990).
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: Statute of Repose: SB 2192 (1998); Amended Miss. Code Ann. § 15-1-36. Establishes a seven-year statute of repose in medical liability actions and creates exceptions for fraudulent concealment and foreign objects.
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).
Medical Liability Reform: Noneconomic Damages Reform: § 538.210 Mo. Stat.. Limits noneconomic damages in medical liability cases to $350,000, to be increased or decreased on an annual basis in accordance with the Implicit Price Deflator for Personal Consumption Expenditures. The $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. Adams v. Children’s Mercy Hospital, 832 S.W.2d 898 (Mo.), cert. denied, 506 U.S. 991 (1992).
Medical Liability Reform: Periodic Payment of Future Damages: § 538.220 Mo. Stat.. Allows a court to order the periodic payment of future damages exceeding $100,000 in medical liability cases.
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.
Medical Liability Reform: Collateral Source Rule Reform: Mont. Code Ann. § 27‑1‑308. Provides for awards to be offset by collateral sources that do not involve rights of subrogation in medical liability cases for awards over $50,000.
Medical Liability Reform: Noneconomic Damages Reform: HB 309 (1995): Mont. Code Ann. § 25‑9‑411. Limits the award of noneconomic damages in medical malpractice cases to $250,000.
Medical Liability Reform: Periodic Payment of Future Damages: HB 309 (1995): Mont. Code Ann. § 25‑9‑412. Provides for the periodic payment of future damages over $50,000.
NEBRASKA
Medical Liability Reform: Contingent Fee Reform: Neb Stat. § 44-2834. Allows a court to review contingent fees in medical and professional liability cases.
Medical Liability Reform: Collateral Source Rule Reform: Neb Stat. § 44-2819. Allows evidence of nonreturnable medical reimbursement insurance in medical liability cases to be taken as a credit against any judgment rendered.
NEVADA
Medical Liability Reform: Collateral Source Rule Reform: Nev. Rev. Stat. Ann. § 42.020. Provides for awards in medical liability cases to be offset by the amount received by a collateral source, including any prior payment by the defendant health care provider.
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). 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.
Medical Liability Reform: Periodic Payment of Future Damages: Nev. Rev. Stat. Ann. § 42.020. Allows a court to order the periodic payment of future economic damages at the claimant’s election.
NEW HAMPSHIRE
Medical Liability Reform: Collateral Source Rule Reform: A New Hampshire statute abolishing the collateral source rule was found to be unconstitutional in Carson v. Maurer, 424 A.2d 825 (N.H. 1980).
Medical Liability Reform: Contingent Fee Reform: N.H. Rev. Stat. Ann. § 508:4-e. Requires a court to approve contingent fees exceeding $200,000 in medical liability cases.
Medical Liability Reform: Good Samaritan Protection: Retired Physicians: HB 1509 (1997); RSA 329:25-a. Grants certain retired physicians immunity from civil liability for volunteer health educational services.
Medical Liability Reform: Noneconomic Damages Reform: A New Hampshire law setting a $250,000 limit on noneconomic damages in medical liability cases was held unconstitutional in Carson v. Maurer, 424 A.2d 825 (N.H. 1980). A $875,000 cap on noneconomic damages was held unconstitutional in Brannigan v. Usitalso, 587 A.2d 1232 (N.H. 1980)).
Medical Liability Reform: Periodic Payment of Future Damages: N.H. Rev. Stat. Ann. § 524:6-a. Allows a court to order the periodic payment of future damages in medical liability cases.
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.
Noneconomic Damages Reform: HB 513 (1986). Limits noneconomic damages to $875,000. The statute limiting recovery for noneconomic loss to $875,000 in personal injury actions violated the equal protection provision of the State Constitution. Brannigan v. Usitalo, 587 A.2d 1232 (N.H. 1991).
NEW JERSEY
Medical Liability Reform: Contingent Fee Reform: N.J. Ct. R. § 1:21-7. Limits contingent fees in medical liability cases pursuant to a sliding scale provided in the New Jersey Court Rules.
NEW MEXICO
Medical Liability Reform: Damages Limits: N.M. Stat. Ann. § 41-5-6, 41-5-7. Limits total damages in medical liability cases to $600,000, except for punitive damages and medical care and related benefits.
Medical Liability Reform: Periodic Payment of Future Damages: N.M. Stat. Ann. § 41‑5-7. Requires juries in medical liability cases to be given a special interrogatory asking if damages are for future medical care. Requires patients to be furnished with medical care as necessary.
NEW YORK
Medical Liability Reform: Collateral Source Rule Reform: N.Y. C.P.L:R § 4545(a). Permits the admissibility of evidence of collateral source payments in medical liability cases.
Medical Liability Reform: Contingent Fee Reform: N.Y. Jud. Law § 474-a. Limits contingent fees in medical liability cases by a sliding scale.
Periodic Payment of Future Damages: SB 9391 (1986).: N.Y. C.P.L.R. § 5031. Mandates periodic payments of future damages exceeding $250,000. The 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 the due process provision of the State Constitution. Doe v. State of New York, 189 A.D.2d 199, 595 N.Y.S.2d 592 (N.Y.A.D. 1993).
NORTH CAROLINA
Medical Liability Reform: Good Samaritan Protection: HB 425 (1991); Amended N.C. Gen. Stat. § 90-21.14. Expands the 1989 Good Samaritan statute, which included only volunteer physician immunity for free emergency services at local health department facilities or non-profit community health centers, to protect all individuals volunteering services at these sites.
NORTH DAKOTA
Medical Liability Reform: Economic Damages Reform: N.D. Cent. Code § 32-03.2-08. Provides that upon the request of a party, economic damages in excess of $250,000 (before reduction for contributory fault and collateral source payments) are subject to review by the court for reasonableness.
Medical Liability Reform: Periodic Payment of Future Damages: N.D. Cent. Code § 32-03.2-09. Allows a court to order the periodic payment of future economic damages for institutional or custodial care exceeding two years in medical liability cases if the defendant can show adequate security. Provides that the periodic payments terminate upon the death of the injured party.
Noneconomic Damages Reform: HB 1050 (1995): N.D. Cent. Code. § 32-42-02. Limits the award of noneconomic damages in medical liability cases to $500,000.
OHIO
Medical Liability Reform: Certificate of Merit: HB 350 (1996). Requires a certificate of merit in medical liability actions. The comprehensive 1996 tort reform law violated the doctrine of separation of powers and the one-subject provision of the State Constitution. State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 715 N.E.2d 1062 (Ohio 1999).
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.
Medical Liability Reform: Periodic Payment of Future Damages: The statute requiring periodic payments of future damages awards in medical liability suits violated the right to jury trial and due process provisions of the State Constitution. Galayda v. Lake Hospital Systems, Inc., 644 N.E.2d 298 (Ohio 1994), reconsideration denied, 644 N.E.2d 1389 (Ohio), cert. denied sub nom. Damian v. Galayda, 516 U.S. 810 (1995).
Medical Liability Reform: Statute of Limitations Reform: HB 350 (1996). Adopts a six year statute of limitations in medical liability claims. The comprehensive 1996 tort reform law violated the doctrine of separation of powers and the one-subject provision of the State Constitution. State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 715 N.E.2d 1062 (Ohio 1999).
Noneconomic Damages Reform: HB 350 (1996). Limits the award of noneconomic damages to the greater of $250,000 or three times economic damages to a maximum of $500,000, unless there is a finding that a plaintiff suffered: (1) a permanent and severe physical deformity; or (2) a permanent physical functional injury that permanently prevents her from being able to independently care for herself and perform life sustaining activities. Provides that if a plaintiff establishes the criteria set forth above, noneconomic damages are limited to the greater of $1 million or $35,000 times the number of years remaining in the plaintiff’s expected life. The comprehensive 1996 tort reform law violated the doctrine of separation of powers and the one-subject provision of the State Constitution. State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 715 N.E.2d 1062 (Ohio 1999).
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: Contingent Fee Reform: Okla. Stat. Ann. tit.5, § 7. Limits contingent fees to 50% of a plaintiff’s recovery.
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.
OREGON
Noneconomic Damages Reform: SB 323 (1987). Limits the award of noneconomic damages to $500,000. The $500,000 limit on noneconomic damages in personal injury and wrongful death actions arising out of common law violated the right to jury trial provision of the State Constitution. Lakin v. Senco Products, Inc., 987 P.2d 463 (Or. 1999).
PENNSYLVANIA
Medical Liability Reform: Alternative Dispute Resolution: HB 2210 (1996). Provides for alternative dispute resolution.
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: Frivolous Lawsuit Sanction: HB 2210 (1996). Allows a court to impose sanctions for frivolous lawsuits.
Medical Liability Reform: Informed Consent: HB 2210 (1996). Addresses informed consent.
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: Periodic Payment of Future Damages: HB 2210 (1996). Allows for the periodic payment of some future damages.
Medical Liability Reform: Pretrial procedures: HB 2210 (1996). Provides for pretrial procedures.
Medical Liability Reform: Statute of Limitations: HB 1802 (2002). Establishes a seven-year statute of limitations on medical liability actions.
RHODE ISLAND
Medical Liability Reform: Collateral Source Rule Reform: R.I. Gen. Laws § 9-19-34.1. Permits the admissibility of evidence collateral source payments from “state income disability or workers’ compensation, any health, sickness or income disability policy, or other contracts” for reimbursement. Requires a jury to reduce damages awards by the amount paid by collateral sources, if such evidence is introduced.
Periodic Payment of Future Damages: R.I. Gen. Laws § 9-21-13. Requires parties to “consider the use of periodic payments as a means of settlement” in actions arising from personal injury or wrongful death, if damages exceed $150,000.
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.
Medical Liability Reform: Contributory Negligence: H 2610 (1988). Retains contributory negligence.
Medical Liability Reform: Statute of Limitations: H 2610 (1988). Establishes a 7-year statute of limitations (running from the discovery of the injury) for medical liability claims by minors.
SOUTH DAKOTA
Medical Liability Reform: Collateral Source Rule Reform: S.D. Codified Laws § 21-3-12. Permits the admissibility of evidence of collateral source payments when the claimant alleges special damages that are or will be paid by insurance, are not subject to subrogation, and are not purchased privately or by government programs.
Medical Liability Reform: Noneconomic Damages Reform: S.D. Codified Laws § 21-3-11. Limits noneconomic damages in medical liability cases to $500,000.
Periodic Payment of Future Damages: S.D. Codified Laws § 21-3A-2. Allows any party to elect the periodic payment of future damages exceeding $200,000 within 120 days of service of the complaint.
Periodic Payment of Future Damages: SB 281 (1986). Mandates periodic payment of punitive damages when requested by a party to the lawsuit if future damages exceed $100,000.
TENNESSEE
Medical Liability Reform: Collateral Source Reform: Tenn. Code Ann. § 29-26-119. Provides for economic damages to be offset in medical liability cases by collateral sources, except for sources including the assets of the plaintiff and the immediate family, or insurance purchased by the plaintiff in whole or in part.
Medical Liability Reform: Contingent Fee Reform: Tenn. Code Ann. § 29-26-120. Requires a judge to award contingent fees in medical liability cases not to exceed 33.3%.
TEXAS
Medical Liability Reform: Emergency Room Physicians and OB-GYNs: HB 18 (1989). Indemnifies emergency room physicians and OB-GYNs for the first $100,000.
Medical Liability Reform: Jury Instruction: HB 18 (1989). Requires that juries be instructed that a bad medical outcome does not necessarily justify a finding of negligence.
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.
Medical Liability Reform: Pretrial Requirements: HB 971 (1995). Requires a plaintiff to file a $5,000 cost bond (a bond given by a litigant to secure the payment of court costs), place $5,000 in an escrow account, or file an expert report for each physician or health care provider listed in the claim. The 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 the State or Federal Constitutions and was not a “special law” in violation of the State Constitution. McGlothlin v. Cullington, 989 S.W.2d 449 (Tex. App. 1999), cert. denied, 120 S. Ct. 616 (1999).
Medical Liability Reform: Sound Science: HB 18 (1989). Requires that expert witnesses be practicing physicians.
Medical Liability Reform: Volunteer Physicians: HB 18 (1989). Indemnifies physicians with a case load of at least 10% or more charity cases that meet risk management and insurance requirements for the first $25,000.
Medical Liability Reform: Wrongful Death: Tex. Rev. Civ. Stat. art. 4590i § 11.02. Limits damages in wrongful death actions to $500,000. The statute originally limited damages in all negligence actions, but the Texas Supreme Court held it unconstitutional except as to wrongful death actions in Rose v. Doctors Hospital, 801 S.W.2d 841 (Tex. 1990) .
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).
Medical Liability Reform: Collateral Source Rule Reform: Utah Code Ann. § 78-14-4.5. Provides for awards to be offset by collateral source payments, excluding any source for which a subrogation right exists and any amount paid by plaintiff or the immediate family to secure the benefit.
Medical Liability Reform: Contingent Fee Reform: Utah Code Ann. § 78-14-7.5. Limits contingent fees in medical liability cases to 1/3 of the amount recovered.
Medical Liability Reform: Noneconomic Damages Reform: Utah Code Ann. § 78-14-7.1. Limits noneconomic damages in medical liability cases to $250,000.
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.
Medical Liability Reform: Periodic Payment of Future Damages: Utah Code Ann. § 78-14-9.5. Allows for the periodic payment of future medical liability damages exceeding $100,000.
VERMONT
Medical Liability Reform: Arbitration: HB 733 (1992). Makes Vermont's previously voluntary arbitration statutes for medical liability claims mandatory. Makes the arbitration board's decision binding if the parties agree beforehand to make it so. Makes the board's decision admissible as evidence at a subsequent trial.
VIRGINIA
Medical Liability Reform: Damages Limits: Va. Code Ann. § 8.01-581-15. Limits total damages in medical liability cases to $1.5 million for acts occurring on or after August 1, 1999, with additional annual adjustments of $50,000 on July 1, 2000, and each July 1 thereafter, with final annual increases of $75,000 on July 1, 2007, and July 1, 2008. The $1 million limit on recoveries in medical liability actions did not violate the right to jury trial, prohibition against special legislation, or separation of powers provisions of the State Constitution, or takings, due process or equal protection provisions of the State or Federal Constitutions. Pulliam v. Coastal Emergency Services of Richmond, Inc., 509 S.E.2d 307 (Va. 1999) (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).
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: Collateral Source Rule Reform: Wash. Rev. Code Ann. § 7.70.080. Permits the admissibility of evidence of collateral source payments in medical liability cases, except if the source is an insurance policy that the plaintiff or a member of the immediate family purchased with his or her assets.
Medical Liability Reform: Contingent Fee Reform: Wash. Rev. Code Ann. § 7.70.070. Requires a court to determine the reasonableness of contingent fees in medical liability cases.
Noneconomic Damages Reform: SB 4630 (1986). Limits the award of noneconomic damages for bodily injury to .43% times the average annual wage times the plaintiff’s life expectancy (no less than 15 years). The variable limit on noneconomic damages awards violated the right to trial by jury under the State Constitution. Sofie v. Fibreboard Corp., 771 P.2d 711 (Wash. 1989).
Periodic Payment of Future Damages: SB 4630 (1986). Wash. Rev. Code Ann. § 4.56.260. Allows a court to order the periodic payment of future damages exceeding $100,000. Provides that a lump-sum payment will be due if the defendant fails to provide adequate security within 30 days.
WEST VIRGINIA
Medical Liability Reform: Certificate of Merit: HB 601 (2001). Establishes a certificate of merit in medical liability actions, abolishes third-party bad faith lawsuits in medical liability actions, and permits parties to submit their claim to either pretrial mediation or a summary jury trial. Increases the number of jurors from 9 to 12 in jury trials. Allows adjudication of a claim if at least nine members of the jury agree.
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: Good Samaritan Liability Reform: SB 744 (1998). Limits liability for physicians who volunteer for certain athletic events sponsored by a public or private elementary or secondary school.
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.
Medical Liability Reform: Noneconomic Damages Reform: W.V. Code Ann. § 55-7B-8. Limits noneconomic damages in medical liability cases to $1 million. The $1 million limit on noneconomic damages awards in medical liability actions did not violate the equal protection, due process, or right to remedy provisions of the State Constitution. Robinson v. Charleston Area Medical Center, Inc., 414 S.E.2d 877 (W.Va. 1991); Estate of Verba v. Ghaphery, 2001 WL 703840 (W. Va. June 19, 2001) (reaffirming Robinson decision).
WISCONSIN
Medical Liability Reform: Collateral Source Rule Reform: Wisc. Stat. Ann. § 893.55 (7). Allows for the admissibility of “evidence of any compensation for bodily injury received from sources other than the defendant to compensate the claimant.”
Medical Liability Reform: Contingent Fee Reform: Wisc. Stat. Ann. § 655.013. Limits contingent fees to 1/3 of the first $1 million recovered, 25% of the first $1 million recovered if liability is stipulated within 180 days of filing of the original complaint and not within 60 days of first day of trial, and 20% for amounts exceeding $1 million recovered. Allows a judge to exceed these amounts in exceptional circumstances.
Medical Liability Reform: Medical Records: AB 727 (1996). Overturns the 1990 Court of Appeals decision in Ambrose v. General Cas. Co., which denied access to medical records pre-existing the date of the occurrence at issue in a given lawsuit. Allows a court order to provide requested information including directly relevant medical records, pre-existing conditions, and treatments.
Medical Liability Reform: Noneconomic Damages Reform: AB 36 (1995): Wisc. Stat. Ann. §§ 893.55, 895.04. Limits the award of noneconomic damages in medical liability cases to $350,000, indexed for inflation. The $350,000 cap on noneconomic damages in medical malpractice actions violated the equal protection provision of the State Constitution. Ferdon v. Wisconsin Patients Comp. Fund, 701 N.W.2d 440 (Wis. 2005).
Medical Liability Reform: Periodic Payment of Future Damages: Wisc. Stat. Ann. § 655.015. Requires future damages in excess of $100,000 to be paid into a fund and then distributed periodically to claimants.
Medical Liability Reform: Wrongful Death Damages Reform: Wisc. Stat. Ann. §§ 893.55, 895.04. Limits damages in wrongful death cases to $500,000 for a minor and $350,000 for an adult.
WYOMING
Medical Liability Reform: Contingent Fee Reform: Wyo. Ct. Rules Ann. Contingency Fee R. 5. Limits contingent fees in medical liability cases to: one-third of the recovery, if the claim settles within 60 days of the filing of the lawsuit; forty percent of the recovery, if the claim is settled after 60 days or a judgment is entered upon a verdict; and 30 percent of any recovery exceeding $1 million.
Medical Liability Reform: Good Samaritan Protection: H.B. 97 (2003). Provides immunity from liability for volunteer health care professionals at nonprofit health care facilities.
© 2007 American Tort Reform Association