ATRA Issues >>

Medical Liability Reform

The lottery-like aspect of civil liability is nowhere more evident than in medical liability. Very few acts of medical negligence result in patient claims and that very few paid claims actually involve medical negligence. The traditional system no longer works. These non-notorious inequities and inefficiencies of the medical liability system negatively affect the cost and quality of health care as well as access to adequate health care. More important, the practice of "defensive medicine" as a means of reducing or avoiding tort liability is a major contributor to health care cost.

ATRA Recommendation: It is the position of the American Tort Reform Association that an effective medical liability reform measure will include - 1) a $250,000 limit on non-economic damages; 2) a sliding scale for attorneys' contingency fees; 3) periodic payment of future costs; and 4) abolition of the collateral source rule.

STATE LAWS ON MEDICAL LIABILITY

In 1994, this chart was created in an effort to determine the status of state laws on medical liability from a variety of available resources. When possible, the chart is updated with state legislative enactments but does not reflect common law developments. While helpful as a rough guide, the use of this chart can not substitute for specific legal research to determine the most accurate status of state laws. Other resources: "www.mcandl.com/states.html"

ALABAMA

STATUTE OF LIMITATIONS

1975 (Code of Alabama Sec. 6-5-482). Two years from date of injury, unless injury not discovered or reasonably discoverable; 6 months from discovery. No suit may be brought more than 4 years after date of injury. Minors under 4: by 8th birthday if statute would have otherwise expired by that time. The Alabama Supreme Court has upheld the constitutionality of this statute. Barlow v. Humana, 495 So. 2d 1048 (Ala. 1986) Tucker v. Nichols, 431 So. 2d 1263 (1983); Reese v. Ranklin Fite Memorial Hospital, 403 so 2d 158 (1981).

LIMITS ON DAMAGE AWARDS

1987 (Ala. Code Sec. 6-5-544;547) $400,000 limit on non-economic damages, including punitive damages, $1 million limit on wrongful death actions. The Alabama Supreme Court ruled the noneconomic damages portion of the statute unconstitutional in Moore v. Mobile Infirmary Association, No. 89-1087, Sp & 27, 1991.

COLLATERAL SOURCE RULES

1987 (Ala. Code Sec. 6-5-545) Discretionary offset; allows the jury to be informed if medical bills and/or lost wages have been paid by a third party.

PERIODIC PAYMENT OF DAMAGE AWARDS

1987 (Ala. Code Sec. 6-5-543) Mandatory periodic payment of future damages in medical injury cases in excess of $150,000.

ALTERNATIVES TO LITIGATION

1975 (Ala. Code Sec. 6-5-485) Voluntary, binding arbitration.

ALASKA

IMMUNITY

1986 (Alaska Stat. Sec. 18.08.086) Immunity for volunteers rendering good faith emergency services.

PRETRIAL SCREENING PANELS

1976 (Alaska Stat. Sec. 09.55.536) Mandatory submission of claims, unless court waives this requirement or parties agree to arbitrate. Results of screening are admissible at later trial. The Alaska Supreme Court upheld this statute as constitutional in Keyes v. Humana Hospital Alaska, Inc., 750 p. 2d 343 (1988).

STATUTE OF LIMITATIONS

1962 (Alaska Stat. Sec. 09.10.070) Two years from date cause of action arises (discovery of injury); tolled by disability.

EXPERT WITNESS RULES

1997 (Alaska Stat. Sec. 09.20.185) Expert witnesses must be licensed and trained in the defendant's discipline, and certified by a board recognized by the state.

LIMITS ON DAMAGE AWARDS

1986 (Alaska Stat. Sec. 09.17.010) Personal injury awards for noneconomic losses may not exceed $500,000. This limit does not apply to damages for disfigurement or severe physical impairment."

COLLATERAL SOURCE RULES

1976 (Alaska Stat. Supp. Sec. 9.55.547; 9.55.548; 9.17.070 (1992)) Discretionary offset determined by the court.

PERIODIC PAYMENT OF DAMAGE AWARDS

1986 (Alaska Stat. Sec. 09.17.040) Mandatory periodic payment of future damages of all personal injury actions at the request of the injured party. 1976 (Alaska Stat. Sec. 09.55.548) Discretionary periodic payment of future damages for medical injury actions only.

ALTERNATIVES TO LITIGATION

1976 (Alaska State Sec. 9.55.535) Voluntary arbitration

ARIZONA

ATTORNEY FEES

1976 (Ariz. Rev. Stat. Ann. Sec. 12-568) Upon request by a party, the court will review the reasonableness for each party's attorney fees.

IMMUNITY

1990 (Ariz. Rev. Stat. Ann. Sec. 12-568) Statute grants immunity from tort liability to physicians who deliver infants under emergency conditions and mothers who were not previously treated by these physicians.

PRETRIAL SCREENING

REPEALED 1989-1975 (Rev. Stat. Ann. Sec. 12-567) Mandatory submission to pretrial panel. Arizona Supreme Court upheld constitutionality of the 1975 act in Eastin v. Broomfield, 570 P.2d 744 (1977).

STATUTE OF LIMITATIONS

AMENDED 1985-1971 (Ariz. Rev. Stat. Ann Sec. 12-542) Two years from date of injury. Foreign object or intentional fraud: 1 year from discovery. 1984 (Ariz. Rev. Stat. Ann. Sec. 12-502) Period of disability (minor or unsound mind) shall not be deemed a portion of the period limited for commencement of action. Statute begins upon removal of disability.

COLLATERAL SOURCE RULES

AMENDED 1984-1976 (Ariz. Rev. Stat. Ann. Sec. 12-565) Discretionary offset, evidence of collateral sources of payment for economic damages may go to jury. The Arizona Supreme Court upheld this rule as constitutional in Eastin v. Broomfield, 570 P.2d 744 (1977).

PERIODIC PAYMENT OF DAMAGE AWARDS

1989 (Ariz. Rev. Stat. Ann. Sec. 12-581 to -594) Mandatory periodic payment of future economic damages where there has been an effective election by a party. Applies to court verdicts, settlements and claims subject to arbitration by law or contract.

ALTERNATIVES TO LITIGATION

1962 (Ariz, Rev. State. Ann. Sec. 12-150 et seq.), Uniform Arbitration Act, parties may agree in writing.

ARKANSAS

Repealed 1985, 1975 (Arkansas Act 638, laws 1975) Voluntary screening panel; results not admissible in other proceedings.

STATUTE OF LIMITATIONS

1979 (Ark Stat. Ann. 16-114-203) Two years from the date of injury. Foreign object: 1 year from discovery. Minors: by 9th birthday (1991 amendment). Adjudicated incompetent plaintiff must bring suit within one year from date of removal of disability.

EXPERT WITNESS RULES

1979 (Ark. Stat. Ann. 16-114-207) Prohibits testimony from expert witnesses whose compensation depends upon outcome of suit. Health care provider shall not be required to give expert opinion testimony against himself except with respect to discovery.

PERIODIC PAYMENT OF DAMAGE AWARDS

1979 (Ark. Stat. Ann. 16-114-208) Discretionary periodic payment of damages over $100,000.

ALTERNATIVES TO LITIGATION

1969 (Ark. State Amm. 16-108-201-224) Uniform Arbitration Act, voluntary arbitration in medical cases only.

CALIFORNIA

AMENDED 1987-1975 (Cal. Bus. & Prof. Code Sec. 6146) Sliding scale fees may not exceed: 40% of first $50,000, 331/3% of the next $50,000, 25% of next $500,000, 15% of damages that exceed $600,000. The California Supreme Court upheld the attorney fee limit in Roa v. Lodi Medical Group, Inc., 211 Cal. Rptr. 77 (1985).

STATUTE OF LIMITATIONS

1975 (Cal. Civ. Proc. Code Sec. 340.5) Three years after injury or 1 year after discovery, whichever occurs first. In no event more than 3 years after injury, unless caused by fraud, concealment, or a foreign object. Minor under 6: 3 years or before 8th birthday, whichever is longer.

LIMITS ON DAMAGE AWARDS

1975 (Cal. Civ. Code Sec. 3333.2) Noneconomic damages limited to $250,000. The California Supreme Court upheld the constitutionality of this limit in Fein v. Permanente Medical Group, 695 P.2d 665 (1985).

COLLATERAL SOURCE RULES

1975 (Cal. Civ. Code Sec. 3333.1) Discretionary offset, evidence of collateral sources may be introduced. The California Supreme Court upheld the constitutionality of this rule in Fein v, Permanente Medical Group, 695 P.2d 665 (1985).

PERIODIC PAYMENT OF DAMAGE AWARDS

1975 (Cal. Civ. Proc. Sec. 667.7) Mandatory periodic payment of future damages award exceeding $50,000, upon request of party; payments to continue after death of plaintiff to parties to whom judgement creditor owed a duty of support. California Supreme Court upheld constitutionality of the scheduled payment rule. American Bank and Trust Co. v. Community Hospital of Los Gates - Saratoga, Inc., 683 P.2d 670 (1984).

ALTERNATIVES TO LITIGATION

1975 (Cal. Civ. Porc. Code Sec. 1295) Voluntary arbitration.

COLORADO

IMMUNITY

1990 (Colo. Rev. Stat. Sec. 13-21-108) Immunity from civil liability for good faith acts made by health care provider while rendering voluntary emergency care or assistance to persons not patients.

PRETRIAL SCREENING PANELS

1988 (Colo. Rev. Stat. Sec. 13-22-401 to 409) Mandatory screening panel for claims of $50,000 or less by "arbitration panel." Findings of panel not admissible at trial. 1988 (Colo. Rev. Stat. Sec. 13-22-311) Court may require mediation of medical injury claims.

STATUTE OF LIMITATIONS

1988 (Colo. Rev. Stat. Sec. 13-80-102.5) Two years from date of accrual, in no event more than 3 years from act. Foreign object: 2 years from discovery. Minor less than 6 years at time of injury: must bring claim by 8th birthday.

EXPERT WITNESS

1988 (Colo. Rev. Stat. Sec. 13-64-401) Expert witness must be licensed physician and substantially familiar with standard of care on date of injury.

LIMITS ON DAMAGE AWARDS

1990 (Colo. Rev. Stat. Sec. 13-64-302.5) Plaintiff may not recover punitive damages against a physician for adverse outcome of prescription drug where FDA protocol followed. 1991 expanded to include medically prescribed drugs or products used on an experimental bases. 1989 (Colo. Rev. Stat. Sec. 13-21-203) Permissible recovery for wrongful death limited to $250,000.

AMENDED 1989-1986 (Colo. Rev. Stat. Sec. 13-21-102.5)1988 (Colo. Rev. Stat. Sec. 13-64-302) Noneconomic damages limited to $250,000. Court may find clear justification to increase limit to $500,000 for noneconomic loss in certain situations. The Colorado Supreme Court upheld the constitutionality of this statute in Scholz v. Metropolitan and Pathologists, P.C., No. 92-8A277, Co. Supreme Court, April 26, 1993.

COLLATERAL SOURCE RULES

AMENDED 1992-1986 (Colo. Rev. Stat. Sec. 13-21-111.6 and 13-64-402 (1992)) Mandatory offset, determined by court.

PERIODIC PAYMENT OF DAMAGE AWARDS

1988 (Colo. Rev. Stat. Sec. 13-64-203) Mandatory periodic payment of future damage awards exceeding $150,000.

ALTERNATIVES TO LITIGATION

1988 (Colo. Rev. Stat. Sec. 13-64-403) Voluntary arbitration. 1990 (Colo. Rev. Stat. Sec. 13-22-402) Established mandatory arbitration pilot program.

CONNECTICUT

ATTORNEY FEES

1986 (Conn. Gen. Stat. Sec. 52-251c) Sliding scale fees may not exceed:33.33% of first $300,000, 25% of next $300,000, 20% of next $300,000, 15% of next $300,000 and 10% damages that exceed $1.2 million.

PRETRIAL SCREENING PANELS

1977 (Conn. Gen. Stat. Sec. 38-19c;38-19f) Voluntary pretrial screening, unanimous findings of panel members admissible at trial.

STATUTE OF LIMITATIONS

1969 (Conn. Gen. Stat. Sec. 52.584) Two years from discovery, but not more than three years after act.

EXPERT WITNESS RULES

1986 Comm. Gen. Stat. Sec. 52-184c(d)) Expert witness must be licensed physician practicing for 5 years before date of injury.

COLLATERAL SOURCE RULES

AMENDED 1987-1985 (Conn. Gen. Stat. Sec. 52-225a) Mandatory offset, court reduces amount of award by collateral sources of payment received by plaintiff, but credit plaintiff with any premiums paid.

PERIODIC PAYMENT OF DAMAGE AWARDS

1987 (Conn. Gen. Sat. Sec. 52-225d) Discretionary periodic payment of all damages in excess of $200,000. The parties have 60 days to reach payment terms for damages over $200,000. If no agreement is reached, a lump sum is awarded.

DELAWARE

ATTORNEY FEES

1976 (del. Code Ann. tit. 18, Sec. 6865) Sliding scale fees may not exceed: 35% of first $100,000, 25% of next $100,000 and 10% of damages that exceed $200,000.

IMMUNITY

1990 (Del. Code. Ann. tit. 10 Sec. 8134) Immunity for physicians volunteering in non-profit medical clinics.

PRETRIAL SCREENING PANELS

1976 (Del. Code Ann. tit. 18, Sec. 6801 to 6814) Voluntary submission to panel upon demand of any party. Results admissible as prima facie evidence at any subsequent trial. Expert witness testimony may be required for panel.

STATUTE OF LIMITATIONS

1976 (Del. Code Ann. tit. 18, Sec. 6856) Two years from injury. If injury is latent, 3 years from discovery. Minor: by 6th birthday or same as adult.

EXPERT WITNESS

1976 (Del. Code. Ann. tit. 18, Sec. 6853 and Tit. 18, Sec. 6854) Expert testimony on deviation from applicable standard unless panel found negligence to have occurred and caused injury complained of. Expert witnesses must have knowledge of locality or similar locality in order to testify.

LIMITS ON DAMAGES

1976 (Del. Code. Ann. tit. 18, Sec. 6855) Punitive damages may be awarded only on finding of malicious intent to injure or willful or wanton misconduct.

COLLATERAL SOURCE RULES

1976 (Del. Code Ann. tit. 18 Sec. 6862) Discretionary offset, evidence of "public collateral sources of payment" may be introduced (no evidence of life insurance, marital or financial status, etc. allowed).

PERIODIC PAYMENT OF DAMAGE AWARDS

1976 (Del. Ann. tit. 18, Sec. 6864) Discretionary periodic payment of future damages in medical injury actions only. Compensation for future pain and suffering and future expenses deducted from balance of payments on death of plaintiff.

ALTERNATIVES TO LITIGATION

(Del. Code Ann. tit. 5701-5725) Uniform Arbitration Act procedures.

DISTRICT OF COLUMBIA

IMMUNITY

1991- Good samaritan statute amended to provide limited immunity, to OB-GYNs providing medical services on behalf of free health care clinics.

STATUTE OF LIMITATIONS

AMENDED 1988-1966 (DCS 12-301) Three years from injury for negligence; 1 year for battery. Disability tolls statute.

ALTERNATIVES TO LITIGATION

Voluntary binding arbitration.

FLORIDA

ATTORNEY FEES

1986 (Fla. Stat. Sec. 766.109) Sliding scale for up to damages of 2 million dollars of damages; 15% if settled before claim filed; 20% if settled after initial arbitration; 25% if settled within 90 days after suit filed; 30% if settled during settlement conference; 35% if settled before jury sworn; 40% if settled or paid before appeal filed; 45% if appealed. Where damages exceed 2 million dollars, 15%.

IMMUNITY

1988 (Fla. Stat. Sec. 766.301) No physician liability for ordinary negligence related to birth related neurological injuries occurring after January 1, 1989.

PRETRIAL SCREENING PANELS

1985 (Fla. Stat. Sec. 766.106, 107) Court may require submission of claim to an arbitration panel. The result is not admissible in a later trial. This statute was found unconstitutional in Aldana v. Holub, 381 So.2d 231 (Fla. 1980).

STATUTE OF LIMITATIONS

AMENDED 1980-1972 (Fla. Stat. Sec. 95.11) Two years from injury or discovery, not to exceed 4 years from injury. If fraud, concealment of injury or intentional misrepresentation prevented discovery within 4 year period, 2 years from discovery, not to exceed 7 years after the act.

EXPERT WITNESS

1988 (Fla. Stat. Sec. 766.102(c)) Expert testimony by licensed physician in same practice or practicing for five years before claim filed.

LIMITS ON DAMAGE AWARDS

1988 (Fla. Stat. Sec. 766.207, 209) Where parties agree to voluntary binding arbitration, (1) net economic damages for wage loss are limited to 80 percent of wages loss and earning capacity; (2) noneconomic damages are limited to a maximum of $250,000 with percentage basis "calculated on a percentage basis with respect to capacity to enjoy life." Where the plaintiff refuses to arbitrate, noneconomic damages, including but not limited to past common and future medical expenses, may not exceed 80 percent of plaintiff's loss of wages and earning capacity, offset by collateral sources. No limits where defendant refuses to arbitrate. (not to exceed $350,000) The $250,000 limit and the $350,000 limit were held unconstitutional in University Miami School of Medicine v. Echarte, no. 90-982, Fla. App. Ct. , 3rd district, June 11, 1991.

COLLATERAL SOURCE RULES

1986 (Fla. Stat. Sec. 768.76) Mandatory offset by court, except for those collateral sources for which there are subrogation rights. 1988 (Fla. Stat. Sec. 766.207, 209) Extends rule to binding arbitration cases. A 1975 statute, without the subrogation exception, was held constitutional in Pinillos v. Cedars of Lebanon Hospital Corp., 403 So. 2d 365 (1981) and Smith v. Department of Insurance, 507 So. 2d 1080 (Fla. 1987).

PERIODIC PAYMENT OF DAMAGE AWARDS

1986 (Fla. Stat. Sec. 768.78) Mandatory periodic payment of future damage award exceeding $250,000, at the request of a party. Defendant may elect to pay lump sum for future economic losses and expenses reduced to present value. 1988 (Fla. Stat. Sec. 766.207(7)(c) Damages for future economic losses awarded by arbitration payable on periodic basis under 766.202(8).

ALTERNATIVES TO LITIGATION

1988 (Fla. Stat. Sec. 766.207) Voluntary binding arbitration.

GEORGIA

AMENDED 1987-1976 (Ga. Code 9-3-71-73) Two years from injury or death, in no event longer than 5 years from act or death. Foreign object: 1 year after discovery. Minor under 5: 2 years from date of 5th birthday, in no event later than 10th birthday or 5 years from date of negligence if under 5 years at time. Agreement by parties to arbitrate tolls statute.

COLLATERAL SOURCE RULES

OVERTURNED 1987 (Ga. Code Sec. 51-12-1) A statute allowing the jury to consider evidence of collateral sources was found unconstitutional in Georgia Power Co. v. Falagan, et al., No. S90A1245, Ga. Sup. Ct. (April, 1991).

ALTERNATIVES TO LITIGATION

AMENDED 1988-78 (Ga. Code 9-9-61-63) Voluntary arbitration subject to court review. Binding if there is a prior agreement to make it so.

HAWAII

ATTORNEY FEES

1986 (Hawaii Rev. Stat. 607-15.5) Attorney fees for plaintiff and defendant shall be limited to a "reasonable amount" as approved by the court.

PRETRIAL SCREENING PANELS

AMENDED 1987-1976 (Hawaii Rev. Stat. 671-11 to -20) Mandatory submission of medical injury claim to "medical claim conciliation panel." Results not admissible at trial.

STATUTE OF LIMITATIONS

AMENDED 1986-1973 (Hawaii Rev. Stat. 657-7.3) Two years from discovery, not to exceed 6 years after act. Statute does not run during any period where the person has failed to disclose any act, error or omission upon which the action is based and which is known or reasonably knowable by that person. Minors: within 6 years of act or 10th birthday, whichever is longer.

LIMITS ON DAMAGE AWARDS

1986 (Hawaii Rev. Stat. 663-8.7) Pain and suffering" damages limited to $375,000; pain and suffering does not include mental anguish, disfigurement, loss of enjoyment of life, and loss of consortium.

ALTERNATIVES TO LITIGATION

1986 (Hawaii Rev. Stat. 601-20) Mandatory nonbinding arbitration for all cases involving $150,000 or less.

IDAHO

REPEALED 1981--1975 (Idaho Code 39-4213) Contingent attorney fees shall not exceed 40% of amount recovered.

PRETRIAL SCREENING PANELS

1976 (Idaho Code 6-1001 to -1011) Mandatory submission of claim to hearing panel. Results not admissible at trial.

STATUTE OF LIMITATIONS

AMENDED 1971-1981 (Idaho Code 5-219) Two years from injury. Foreign object: 1 year from discovery or 2 years from injury whichever is later. Idaho Supreme Court upheld constitutionality of this statute in Holmes v. IWASA, 657 P.2d 476 (1983).

EXPERT WITNESS RULES

1976 (Idaho Code 6-1013) Expert witness must have knowledge of community standards.

LIMITS ON DAMAGE AWARDS

1990 (Idaho Code 6-1606) Removed 1992 SUNSET from statute below. SUNSET 1992-1987 (Idaho Code 6-1603) Noneconomic damages in any tort action shall not exceed $400,000, unless personal injury caused by "willful or reckless misconduct" or circumstances that would constitute a felony. This cap shall increase or decrease yearly according to the state's adjustment of the average annual wage. Original statute applying limit only to medical liability cases was overturned in Jones v. State Board of Medicine, 555 P.2d 399 (Idaho 19760 cert denied 431 U.S. 914 (1977).

COLLATERAL SOURCE RULES

1990 (Idaho Code Sec. 6-1606) Mandatory offset of collateral sources except for federal benefits, life insurance and subrogation rights.

PERIODIC PAYMENT OF DAMAGE AWARDS

1987 (Idaho Code Sec.6 -1602) Discretionary periodic payment of future damage awards exceeding $100,000.

ALTERNATIVES TO LITIGATION

1975 (Idaho Code 7-801-922) Uniform Arbitration Act Procedures.

ILLINOIS

ATTORNEY FEES

1985 (Ill. Rev. Stat. Ch. 110, Sec. 2-1114) Sliding scale fees may not exceed:33.33% of first $150,000, 25% of next $850,000 and 20% of damages exceeding $1 million. Where attorney performs extraordinary services involving more than usual participation of time and effort, the attorney may apply to the court for additional compensation (735 ILCS Sec. 5/2-1114 (1992)).

PRETRIAL SCREENING PANELS

REPEALED 1990-1985 (Ill. Rev. Stat. Ch. 110, Sec. 2-1012 to 1020) Mandatory submission of medical injury claim, except where all parties agree to waive. Panel determination not admissible at any subsequent trial. The Illinois Supreme Court struck down the mandatory panel process as unconstitutional in Bernier v. Burris, 497 N.E. 2d 763 (1986) citing, Wright v. Central Du Page Hospital Association 374 N.E. 2d 763 (1976).

STATUTE OF LIMITATIONS

AMENDED 1987-1982 (Ill. Rev. Stat. Ch. 83.5 22.1) Two years from discovery but not more than 4 years from act. Statute tolled for disability (where plaintiff is insane, mentally ill or imprisoned). Minors: 8 years after act but not after age 22. The Illinois Supreme court upheld the constitutionality of the statute of limitations. Anderson v. Wagner, 402 N.W. 2d 560, app. dismissed, 449 U.S. 807 ((1979), reversing, Woodward v. Burnahm City Hospital, 377 N.E. 2d 290 (1987).

LIMITS ON DAMAGE AWARDS

REPEALED 1979--1975 (Ill. Rev. Stat. Ch. 70 101) The maximum recovery for medical injury shall be $500,000. The Illinois Supreme Court struck down the $500,000 cap on grounds that it was "arbitrary" and a "special law" in violation of the state constitution. Wright v. Central Du Page Hospital Association, 347 N.E. 2d 736 (1976). 1985 (Ill. Rev. Stat. ch. 110,2-1115) Punitive damages not recoverable.

COLLATERAL SOURCE RULES

AMENDED 1985-1976 (Ill. Rev. Stat. Ch. 110, Sec. 2-604) Reduction of collateral source is for 50% of collateral payments for lost wages or disability benefits, 100% of medical benefits (except those attributable to injury at issue and to extent of subrogation rights) but not more than 50% of the total award. The Illinois Supreme Court upheld this statute as constitutional in Bernier v. Burris497 N.E.2d 763 (1986).

PERIODIC PAYMENT OF DAMAGE AWARDS

1985 (Ill. Rev. Stat. Ch. 100 Sec. 2-1705-1718) Mandatory periodic payment of future damages awards over $250,000. The Illinois Supreme Court upheld this statute as constitutional in Bernier v. Burris, 497 N.E.2d 763 (1986).

ALTERNATIVES TO LITIGATION

AMENDED 1977-76 (Ill. Rev. Stat. Ch. 10-201 et seq.) Voluntary arbitration agreements permissible with revocability clause.

INDIANA

ATTORNEY FEES

1975 (Ind. Code 16-9.5-5-1) Plaintiff's attorney fees may not exceed 15% of any award that is made from the state's patient compensation fund (PCF). (NOTE: Indiana's PCF covers that portion of an award that exceeds $100,000).

PRETRIAL SCREENING PANELS

AMENDED 1987-1975 (Ind. Code 16-9.5-9-1 to -10) Mandatory submission of claim, unless parties agree otherwise, or amount sought is less than $15,000. The panel's determination is admissible at any later trial. The Indiana Supreme court upheld the constitutionality of the mandatory panel review requirement. Johnson v. St. Vincent Hospital, 404 N.E. 2d 585 (1980).

STATUTE OF LIMITATIONS

AMENDED 1985-1975 (Ind. Code 16-9.5-3-1) Two years from discovery. Minors under 6: until the minor's 8th birthday. Applies regardless of minority or other disability. The Indiana Supreme Court has upheld the constitutionality of the statute of limitations for minors. Johnson v. St. Vincent Hospital, 404 N.E. 2d 585 (1980).

LIMITS ON DAMAGE AWARDS

AMENDED 1989-1975 (Ind. Code 16-9.5-2-2) For acts after January 1, 1990, total medical liability damages limited to $750,000 (includes excess payments from PCF). For acts before or on January 1, 1990, $500,000 limit. Defendant must pay no more than $100,000 per practitioner per incident with a $300,000 annual aggregate limit. The Indiana Supreme Court upheld the state's limit on damage awards as constitutional. Johnson v. St. Vincent Hospital, 404 N.E. 2d 585 (1980), St. Anthony Medical v. Smith, no. 37A04-9010 CV-460, Ind. App. Ct., May 28, 1992,; Bova v. J.H. Roig, M.D., no. 56A03-9110-CV-313, Ind. App. Ct., 1st. Dist., December 7, 1992.

COLLATERAL SOURCE RULES

AMENDED 1989-1975 (Ind. Code sec. 34-4-36-2) Discretionary offset for collateral sources except life insurance, insurance payments made directly to plaintiff/plaintiff's family or state/federal benefits paid before trial.

PERIODIC PAYMENT OF DAMAGE AWARDS

1985 (Ind. Code 16-9.5-2-2.2) Discretionary periodic payment.

ALTERNATIVES TO SUIT

1988 (Ind. Code 34-4-2-1-22) Uniform Arbitration Act procedures.

IOWA

ATTORNEY FEES

1975 (Iowa code 147.138) The court may review fees in any personal injury or wrongful death action against specified health care providers or hospitals.

STATUTE OF LIMITATIONS

AMENDED 1986-1945 (Iowa Code 614.1 Sub.9) Two years from discovery but not more than 6 years after injury, unless foreign object left in body. The Eighth Circuit upheld the constitutionality of the statute in Fitz v. Dolyak, 712 F. 2d 330 (1983).

AMENDED 1997 Minors under 8 years of age until the minor's 10th birthday.

COLLATERAL SOURCE RULES

1975 (Iowa Code 147-136) Mandatory offset of collateral sources.

PERIODIC PAYMENT OF DAMAGE AWARDS

AMENDED 1986-1984 (Iowa Code 668.3) Discretionary court-ordered periodic payment of future damages.

ALTERNATIVES TO LITIGATION

1981 (Iowa Code 679A.1) Written arbitration agreement valid and irrevocable.

KANSAS

AMENDED 1988-1976 (Kan. Stat. Ann. 7-121b) Court may review fees for reasonableness.

IMMUNITY

1990 (Kan. Stat. Ann. 75-6102; 6115; 6117) Charitable health care providers are considered employees of the state for purposes of the Kansas Tort Claims Act.

PRETRIAL SCREENING PANELS

1976 (Kan. Stat. Ann. 65-4901) Voluntary submission of medical injury claims upon request of a party.

AMENDED1987 (Kan. Stat. Ann. 60-3501-3509) Decisions admissible at any subsequent trial.

STATUTE OF LIMITATIONS

AMENDED 1987-1965 (Kan. Stat. Ann. 60-513) Two years from discovery but not more than 4 years after injury. The Kansas Supreme Court upheld the constitutionality of the statute in Stephens v. Snyder Clinic Association., 631 P.2d 222 (1981).

LIMITS ON DAMAGE AWARDS

1988 (Kan. Stat. Ann. 60-19a02) In personal injury actions accruing after July 1, 1988, the amount of noneconomic damages recoverable by each party from all defendants for all claims is limited to $250,000.

COLLATERAL SOURCE RULES

1992 (Kan. Stat. Ann. Secs. 60-3801-3807) Statute allowing evidence of collateral sources to be admitted where plaintiff claims $150,000 or more in damages was found unconstitutional in Thompson v. KFB Insurance Company, Case No. 68,452 (1993), Ks. Sup. Ct. The Kansas Supreme Court struck down an earlier discretionary offset (1988-1985 (Kan. Stat. Ann. sec. 60-3403)) that applied only to medical liability actions in Farley v. Engleken, 740 P.2d 1058 (1987).

PERIODIC PAYMENT OF DAMAGE AWARDS

SUNSET 7-1-1993 AMENDED 1988-1986 (Kan. Stat. Ann. 60-3407) Mandatory periodic payment of future economic damages where the sum of damages awarded for noneconomic loss and current economic loss is less than one million dollars and the verdict results in an award for future economic loss which exceeds the difference between one million dollars and the sum of such amounts.

The Kansas Supreme Court struck down this statute as unconstitutional in Kansas Malpractice Victims Coalition v. Bell, 757 P.2d 251 (1988). REPEALED 1988-1976 (Kan. Stat. Ann. 40-3403) Mandatory periodic payment of damages for future medical care and related benefits where the total amount of the judgement is $500,000.

ALTERNATIVES TO LITIGATION

AMENDED 1987-1973 (Kan. Stat. Ann. 5-401 et seq.) Uniform Arbitration Act adopted but not for tort actions.

KENTUCKY

STATUTE OF LIMITATIONS

1974 (Ky. Rev. Stat. 413.140) One year from discovery but not more than 5 years after act.

COLLATERAL SOURCE RULES

1988 (Ky. Rev. Stat. sec. 411-188) Discretionary offset of collateral sources except life insurance.

ALTERNATIVES TO LITIGATION

1984 (Ky. Rev. Stat. 417-050) Written arbitration agreements are enforceable and irrevocable.

LOUISIANA

AMENDED 1988-1976 (La Rev. Stat. Ann. 40:1299.47) Mandatory submission of medical injury claims, except for claims submitted to binding arbitration or where parties agree to waive requirement. The panel decision is admissible at any subsequent trial. The Louisiana Supreme Court upheld the constitutionality of this statute in Everett v. Goldman, 359 So. 2d 1256 (1978).

STATUTE OF LIMITATIONS

AMENDED 1987-1975 (La. Rev. Stat. Ann. 9-5628) One year from act or date of discovery, but in no event more than 3 years from date of injury. Applies regardless of minority or disability. The Louisiana Appellate Court upheld the constitutionality of this statute in Valentine v. Thomas, 433 So. 2d 289 (1983).

LIMITS ON DAMAGE AWARDS

1990 (La. Rev Stat. Ann. 40:1299.151-168) State will reimburse health care providers who provide charity care to more than 10 percent of their patients adjudged liable for actual damages.

1975 (La. Rev. Stat. Ann. 40:1299.42) The total amount of damages for all malpractice claims is limited to $500,000, plus interest and costs, exclusive of future medical care and related benefits. The Louisiana Supreme Court upheld the constitutionality of the statute. Williams v. Kushner, slip. op., 88-C-1153, 88-C-1188 (September 12, 1989), hr'g. denied, 549 So. 2d 294 (1989), Butler v. Flint Goodrich Hospital of Dillard University, Supreme Court of Louisiana, no 92cc 0559, (4th circuit), October 19, 1992.

PERIODIC PAYMENT OF DAMAGE AWARDS

1984 (La. Rev. Stat. Ann. 40:1299.43) Mandatory periodic payment of damages for future medical care and related benefits where the total amount of judgement is $500,000 or more.

ALTERNATIVES TO LITIGATION

1975 (La. Rev. Stat. Ann. 9:4230-4236) Voluntary revocable arbitration agreements allowed.

MAINE

AMENDED 1987-1985 (Me. Rev. Stat. Ann. tit. 24 sec. 2961) Sliding scale fees may not exceed: 33.33% of first $100,000, 25% of next $200,000 and 20% of damages that exceed $200,000.

IMMUNITY

1985 (Me. Rev. Stat. Ann. tit. 24, 2903) Actions for wrongful birth or life are prohibited.

PRETRIAL SCREENING PANELS

AMENDED 1990 (Me. Rev. Stat. Ann. Tit. 24, 2857) AMENDED 1989-1986 (Me. Rev. Stat. Ann. Tit 24, 2851-2859) Mandatory submission of medical injury claims to a "prelitigation screening and mediation panel" except where all parties have agreed to bypass the panel. Any findings that are unanimous and unfavorable to the claimant as to both negligence and causation are admissible at any subsequent trial. For all claims filed after January 1, 1991, the panel's discovery is deemed court discovery at any subsequent trial.

STATUTE OF LIMITATIONS

AMENDED 1985-1977 (Me. Rev. Stat. Ann. tit. 24.2902) Three years after cause of action accrues (injury). Minors: 6 years after accrual of within 3 years of minority, whichever occurs first. Reasonable discovery rule for foreign objects. Not to exceed 3 years from date of injury.

COLLATERAL SOURCE RULES

1990 (Me. Rev. Stat. Ann. tit.24, sec.2906) Mandatory offset of collateral sources that have not exercised subrogation rights within 10 days after a verdict for the plaintiff.

PERIODIC PAYMENT OF DAMAGE AWARDS

1985 (Me. Rev. Stat. Ann. tit. 24 2951) Mandatory periodic payments of future economic damages exceeding $2500,000 at the request of a party.

ALTERNATIVES TO LITIGATION

1967 (Me. Rev. Stat. Ann. tit.14, 5927-49) Uniform Arbitration Act procedures. REPEALED 1983-1077 (Me. Rev. Stat. Ann. tit.24, 2701-2715) Patients must have arbitration procedures fully explained to them.

MARYLAND

AMENDED 1986--1976 (Md. Cts. & Jud. Proc. 3-2A-07) Court or pretrial screening panel will review disputed fees in medical injury actions.

PRETRIAL SCREENING PANELS

AMENDED 1989-1976 (Md. Cts. & Jud. Proc. Code Ann. 3-2A-03 to 06) Mandatory submission of claims to a "health claims arbitration panel." The panel's decision on fault is "presumed to be correct" and its award is admissible as evidence at any subsequent trial.

STATUTE OF LIMITATIONS

AMENDED 1987-1975 (Md. Cts. & Jud. Proc. Code Ann. 5-109) Five years from act or 3 years from discovery, whichever is shorter. Minors: the statute begins to run at age 11; exceptions apply if the damages affect the reproductive system or the injury was caused by a foreign object.

LIMITS ON DAMAGE AWARDS

AMENDED 1989-1986 (Md. Cts. & Jud, Proc. Code Ann. 11-108) In any action for damages for personal injury accruing after July 1, 1986, an award for non-economic damages may not exceed $350,000 which has a $500,000 limit, unless two or more beneficiaries in which case there is a $700,000 limit.

COLLATERAL SOURCE RULES

1989 (Md. Cts. & Jud. Proc. Code Ann. sec. 3-2A-05(h)). Discretionary offset of collateral sources in cases before a medical liability arbitration panel.

PERIODIC PAYMENT OF DAMAGE AWARDS

1986 (Md. Cts. & Jud. Proc. 11-109) Discretionary periodic payment of future economic damages.

ALTERNATIVES TO LITIGATION

(Md. Cts. & Jud. Proc. Code Ann. 3-201-224) Uniform Arbitration Act procedures.

OTHER

1993 - Part of a comprehensive health care reform package provides a defense from liability for physicians who adhere to standards of practice among health care professionals with similar training and experience in the same, or similar community.

MASSACHUSETTS

ATTORNEY FEES

n. ch. 231, sec. 601) Sliding scale fees may not exceed: 40% of first $150,000, 33.33% of next $150,000, 30% of next $200,000 and 25% of damages that exceed $500,000.

PRETRIAL SCREENING PANELS

1975 (Mass. Gen. Laws Ann. Ch. 231,608) Mandatory submission or medical injury claims to a "medical malpractice tribunal." The decision of the tribunal is admissible at any subsequent trial. The Massachusetts Supreme Judicial Court upheld the constitutionality of this statute in Paro v. Longwood Hospital, 369 N.E. 2d 993 (Mass. 1977)

STATUTE OF LIMITATIONS

1986 (Mass. Gen. Laws. Ann ch. 231.600 and ch. 260 Sec. 4) Three years from date of injury,but not more than 7 years from injury unless foreign object. Minors: 3 years from injury. If under 6 years of age, statute does not begin to run until 9th birthday.

LIMITS ON DAMAGE AWARDS

1986 (Mass. Gen. Laws Ann. ch. 231.60H) Medical liability damages limited to $500,000 total, unless the jury determines that there is a substantial or permanent loss or impairment of bodily function or substantial disfigurement, or other special circumstances which warrant a finding that the cap was unfair. If the total amount of general damages, from a single occurrence, for all plaintiffs exceeds $500,000, then the amount of such damages recoverable by each plaintiff will be reduced to a percentage of $500,000 proportionate to that plaintiff's share of the total amount of such damages for all plaintiffs.

COLLATERAL SOURCE RULES

1986 (Mass. Gen. Laws Ann. ch.231, sec. 60G) Mandatory offset determined by the court.

MICHIGAN

ATTORNEY FEES

1981 (Michigan Court Rules, Rule 8.121.(b)) The maximum contingency fee for a personal injury action is 33 1/3% of the amount recovered.

PRETRIAL SCREENING PANELS

REPEALED in 1993 by SB 270 CH-2 Mandatory submission of claims to panel.

STATUTE OF LIMITATIONS

AMENDED 1986-1846 Two years from date of injury if discoverable or 6 months from discoverability, whichever is later, not to exceed 6 years. Disabled plaintiff: 1 year after injury except in cases of reproductive injury. Foreign object: 6 months. Minors: 6 years from date of occurrence (if action brought after 10th birthday, must be within the 6 year limit).

EXPERT WITNESS

Expert in medical liability actions must be a licensed health professional in a state, practice in the same substantially similar specialty at time of occurrence, be board certified ( if required on specialty ), during the year preceding action had clinical or academic experience in specialty.

LIMITS ON DAMAGE AWARDS

1986 (Mich. Comp. Laws 600.1483) Noneconomic damages in medical malpractice actions limited to $225,000 unless there has been a death, intentional tort, foreign object wrongfully left in body, injury to reproductive system, fraudulent concealment of injury by health care provider, limb or organ wrongfully removed and patient has lost a vital bodily function. The limit on noneconomic damages shall be increased each year by the increase in the consumer price index.

COLLATERAL SOURCE RULES

1986 (Mich. Comp. Laws sec.600.6303) Mandatory offset of collateral sources, except life insurance, admissible after a verdict for plaintiff.

PERIODIC PAYMENT OF DAMAGE AWARDS

1986 (Mich. Comp. Laws 600.6307) Mandatory periodic payment of future economic damages excluding future medical, other health care costs and collateral source benefits. Future non-economic damages reduced to gross percent cash value determined by statutory formula. 1975 (Mich. Comp. Laws 600.5056) Where there has been a medical malpractice arbitration award, unless parties stipulate awards in excess of $50,000, there shall be at lease one-third of award paid in lump sum.

ALTERNATIVES TO SUIT

1975 (Mich. Comp. Laws 600.5040-565, 500,3051-3062) Patients and providers may execute a revocable arbitration agreement to govern disputes. The Supreme Court of Michigan held this statute constitutional in Morris v. Metriyakool, 344 N.W. 2d 736 (1984). AMENDED 1993-Parties may enter into a written agreement specifying binding arbitration when damages are $75,000 or less. Parties who have receive presuit notice may agree to binding arbitration for an amount beyond $75,000.

OTHER

1993 - Certificate of merit, written presuit notice required.

MINNESOTA

AMENDED 1982-1935 (Minn. Stat. 541.07) Two years from injury or termination of treatment. The Eighth Circuit has upheld the statue's constitutionality in Jewson v. Mayo Clinic, 691 F. 2d 405 (1982).

LIMITS ON DAMAGE AWARDS

1990 (Minn. Stat. 549.20) Punitive damages may be awarded only upon a showing of willful indifference or deliberate disregard for care. 1986 (Minn. Stat. 549.23) Intangible loss awards may not exceed $400,000. Intangible losses are those for embarrassment, emotional distress, and loss consortium.

COLLATERAL SOURCE RULES

1986 (Minn. Stat. 548.36) Mandatory offset of collateral sources by court if defendant brings in evidence of payments made to plaintiff.

PERIODIC PAYMENT OF DAMAGE AWARDS

1988 (Minn. Stat. 549.25) Discretionary periodic payment of future damages in excess of $100,000.

OTHER

MISSISSIPPI

IMMUNITY

1942 (Miss. Code Ann. 73-25-37) No civil liability for ordinary negligence of health care provider rendering care at scene of emergency or in transporting injured victim.

STATUTE OF LIMITATIONS

1976 (Miss. Code Ann. 15-1-36) Two years from discovery. Minors or mentally incompetent plaintiffs: 2 years after minority or disability ceases.

EXPERT WITNESS

1990 (Miss. Code ann. 11-1-61) Expert witness must be licensed physician.

MISSOURI

PRETRIAL SCREENING PANELS

Overturned in State ex rel. Cardinal Glennin Memorial Hospital v. Geartner, 583 S.W.2d 107 (Mo. Banc. 1979).

STATUTE OF LIMITATIONS

1976 (Mo. Rev. Stat. 516.105) Two years from act. Foreign object: 2 years from discovery. In no event longer that 10 years from act. Minor under 10: until 12th birthday. The Supreme Court of Missouri upheld constitutionality of this statute. Ross v. Kansas City Gen. Hosp. & Med. Ct.. 608 S.W. 2d 397 (1980).

LIMITS ON DAMAGE AWARDS

1986 (Mo. Rev. Stat. 538.210) Noneconomic damages in medical liability actions limited to $350,000 per occurrence from any one defendant. This limit is increased or decreased January 1st of each year in accordance with figures determined by the U.S. Department of Commerce. The Missouri Supreme Court upheld the constitutionality of this statute in Adams v. Childrens Mercy Hospital, no. 73 867, Mo. Sup. Ct., May 19, 1991. As of 1993 limit stands at $465,000.

COLLATERAL SOURCE RULES

1987 (Mo. Rev. Stat. sec. 490.715) Only evidence of special damages paid by defendant before trial may be introduced as collateral source benefits.

PERIODIC PAYMENT OF DAMAGE AWARDS

1986 (Mo. Rev. Stat. 538.220) Mandatory periodic payment of future damages over $100,000.

ALTERNATIVES TO LITIGATION

1980 (Mo. Rev. Stat. 435.350-470) Uniform Arbitration Act procedures.

MONTANA

PRETRIAL SCREENING PANELS

1977 (Mont. Code Ann. 27-6-101 to 704) Mandatory unless parties submit to arbitration. Panel report not admissible at subsequent trial. The Montana Supreme Court held this statute constitutional in Linder v. Smith, 629 P.2d 1187 (1981).

STATUTE OF LIMITATIONS

1971 (Mont. Code Ann. 27-2-205) Three years from injury or 3 years from discovery, whichever occurs first. In no event more than 5 years from act. Statute tolled against a potential plaintiff where there has been a failure of disclosure of the act. Minors: within 3 years of 8th birthday or death, whichever occurs first.

LIMITS ON DAMAGE AWARDS

1978 (Mont. Code Ann. 27-1-310) Recovery of non-economic damages prohibited in breach of contract action unless breach resulted in physical injury. 1995 Amended (Mont. Code. Ann. 25-9-403 ) limits noneconomic damages in medical malpractice actions at $250,000.

COLLATERAL SOURCE RULES

1987 (Mont. Code Ann. sec. 21-1-308) Mandatory offset of collateral sources by judge after verdict for plaintiff of over $50,000.

PERIODIC PAYMENT OF DAMAGE AWARDS

1987 (Mont. Code Ann. 25-9-4-3) Discretionary periodic payment of future damages in excess of $100,000.

ALTERNATIVES TO LITIGATION

1985 (Mont. Code Ann. 27-5-111-324) Uniform Arbitration Act procedures.

NEBRASKA

ATTORNEY FEES

1976 (Neb. Rev. Stat. 44-2834) Court review for reasonableness of attorney fees in medical liability actions.

PRETRIAL SCREENING PANELS

1976 (Neb. Rev. Stat. 44-2840 to 2841) Mandatory review of medical injury claims except where plaintiff affirmatively waives his right to panel hearing. The panel report is admissible in any subsequent trial. The Nebraska Supreme Court upheld the constitutionality of this statute in Prendergast v. Nelson, 256 N.W. 2d 657 (1977).

STATUTE OF LIMITATIONS

1984-1976 (Neb. Rev. Stat. 44-2828) Two years from act or 1 year from discovery, but not more than 10 years after date of services which is basis for suit.

LIMITS ON DAMAGE AWARDS

AMENDED 1986--1976 (Neb. Rev. Stat. 44-2825) The total amount recoverable by a plaintiff against a health care provider, including amounts from the Excess Liability Fund, may not exceed one million dollars. Prior to 1985, limit was $500,000. The Nebraska Supreme court has upheld the constitutionality of this statute in Prendergast v. Nelson, 256 N.W. 2d 657 (1977).

COLLATERAL SOURCE RULES

1976 (Neb. Rev. Stat. 44-2819) Discretionary offset of medical collateral source benefits taken as a credit on the plaintiff's award. Evidence does not go to jury. This statute was found constitutional in Prendergast v. Nelson, 256 N.W. 2d 657 (1977).

NEVADA

SUNSET 1989-1985 (Nev. Rev. Stat. 41A.003-069) Mandatory submission of claims. Decision not admissible at subsequent trial.

STATUTE OF LIMITATIONS

EFFECTIVE 1989-985 (Nev. Rev. Stat. 41A.097) Four years after injury or 2 years after discovery, whichever occurs first. Statute does not run if injury concealed. Minors: statute does not run until age 10 for brain damage or birth defects; if sterility alleged, statute runs 2 years after discovery.

COLLATERAL SOURCE RULES

(Nev. Rev. Stat. Sec. 42.020) In actions against HCPs, damage awards must be reduced by the amount of any prior payment by the HCP to the plaintiff.

ALTERNATIVES TO LITIGATION

1969 (Nev. Rev. Stat. 38.015-255) Uniform Arbitration Act provisions; parties may agree in writing to arbitration. Enforceable unless there are grounds for revocation.

NEW HAMPSHIRE

ATTORNEY FEES

1986 (N.H. Rev. Stat. Ann. 508:4-e) The court will review each party's attorney fees. Fees for actions resulting in settlement or judgement of $200,000 or more shall be subject to court approval. Carson v. Maurer (424 A.2d 825 (N.H. 1980)) overturned an earlier attorney fee provision.

IMMUNITY

AMENDED 1985-1967 (N.H. Rev. Stat. Ann. 508:12) No person rendering emergency care in good faith shall be liable for ordinary negligence.

PRETRIAL SCREENING PANELS

1972 N.H. Rev. Stat. Ann. 5198- A:1 to A:10) Voluntary submission by any party of medical injury claims to a "professional malpractice panel." The panel decision is not admissible at any subsequent trial.

STATUTE OF LIMITATIONS

1986 (N.H. Rev. Stat. ann. 508:4-:8) Three years from injury or 3 years from discovery or reasonable discovery. Minors or incompetents: 2 years from removal of disability.

LIMITS ON DAMAGE AWARDS

1986 (N.H. Rev. Stat. 508:4-d) Noneconomic damages limited to $250,000. The New Hampshire Supreme Court struck down the statute as unconstitutional in Carson v. Maurer, 424 A. 2d 825 (1980). $875,000 limit on noneconomic damages found unconstitutional in Brannigan v. Usitalo, no. 90-377, N.H. Sup. Ct. March 13, 1991.

COLLATERAL SOURCE RULES

OVERTURNED 1977 (N.H. Rev. Stat. Ann. sec. 507-C;7) Mandatory offset of collateral sources in medical liability was found unconstitutional in Carson v. Maurer, 424 A. 2d 825 (1980).

PERIODIC PAYMENT OF DAMAGE AWARDS

1977 (N.H. Rev. Stat. Ann. 507 C:7) Discretionary award of periodic payment of future damages at request of either party, where damages exceed $50,000. The New Hampshire Supreme Court struck down the statute as unconstitutional in Carson v. Maurer, 424 A.2d 825 (1980).

ALTERNATIVES TO LITIGATION

AMENDED 1945-1929 (N.H. Rev. Stat. Ann. 542-1-10) Uniform Arbitration Act procedures.

NEW JERSEY

ATTORNEY FEES

1976 (New Jersey Court Rules sec. 1:2107) Sliding scale fees may not exceed: 33.33% of first $250,000, 25% of next $250,000 and 20% of next $500,000. Amount shall not exceed 25% for a minor or an incompetent plaintiff.

PRETRIAL SCREENING PANELS

REPEALED 1988-AMENDED 1983-1978 (N.J.C.P.R. 4.21-1 to -8) Claim submitted with the consent of the parties and the panel's unanimous findings admissible at any subsequent trial. Prior to 1983, the panel review was mandatory. The New Jersey Supreme Court upheld the constitutionality of the 1978 statute and rejected a claim that the mandatory review was unconstitutional. Perna v. Pirozzi, 457 A.2d 431 (1983).

STATUTE OF LIMITATIONS

AMENDED 1896-1877 (N.J. Rev. Stat. 2A:14-2) Two years from accrual of claim (discovery).

COLLATERAL SOURCE RULES

1987 (N.J. Rev. Stat. sec. 2A:15-97) Mandatory offset of collateral sources, excluding workers' compensation or life insurance, admissible at trial and deductible from any verdict for plaintiff.

ALTERNATIVES TO LITIGATION

1985 (N.J.C.P.R. 4:21A-1 to A-8) Voluntary arbitration of medical claims by written agreement, if claim over $20,000. Applies to all personal injury torts except automobile liability claims.

NEW MEXICO

PRETRIAL SCREENING PANELS

1976 (N.M. Stat. Ann. 41-5-14-to 20) Mandatory submission of medical injury claims to a hearing panel. Panel report is not admissible at any subsequent trial.

STATUTE OF LIMITATIONS

1976 (N.M. Stat. Ann. 41-5-13) Three years from date of injury. Minors under 6: until 9th birthday to file suit. This provision applies to all persons regardless of minority or disability. The statute is tolled upon submission to hearing panel and shall not run until 30 days after panel final decision.

LIMITS ON DAMAGES

1976 (N.M. Stat. Ann. 41-5-6; -7) The aggregated dollar limit recoverable may not exceed $500,000, except for punitive damages and medical care and related costs. Health care providers not liable for any amount over $100,000. Monetary damages for future medical expenses shall not be awarded in medical malpractice cases. In 1995, the limit will be raised to $600,000.

COLLATERAL SOURCE RULES

Mandatory offset of collateral sources.

PERIODIC PAYMENT OF DAMAGE AWARDS

1976 (N.M. Stat. Ann. 41-5-7) Mandatory periodic payment of damages for future medical care.

ALTERNATIVES TO LITIGATION

1978 (N.M. Stat. Ann. 44-7-1 to 7-22) Uniform Arbitration Act provisions; parties may agree in writing to arbitration. Enforceable unless there are grounds for revocation.

NEW YORK

ATTORNEY FEES

1985 (N.Y. Jud. Law sec. 474a) Sliding scale fees may not exceed: 30% of first $250,000, 25% of next $250,000, 20% of next $500,000, 15% of next $250,000 and 10% of damages exceeding $1.25 million.

PRETRIAL SCREENING PANELS

REPEALED, 1974 (N.Y. Jud. Law 148-a) Mandatory submission of medical injury claims to a "medical malpractice panel." The unanimous opinion of panel is admissible at any subsequent trial. New York's highest court upheld the constitutionality of the statute in Treyball v. Clark, 483 N.E. 2d 1136 (N.Y. 1985). Currently a precalendar conference for each malpractice case is mandatory and replaces a formal hearing.

STATUTE OF LIMITATIONS

1975 (CPCR 214-a) Two years and 6 months from injury or from last treatment where there is continuous treatment for condition giving rise to claim. Foreign object: 1 year from discovery.

COLLATERAL SOURCE RULES

1981 (N.Y. Civ. Prac. Law sec. 4545) Mandatory offset of collateral sources made by the court.

PERIODIC PAYMENT OF DAMAGE AWARDS

1985 (N.Y. Civ. Prac. Law 5031-5039) In medical injury claim, mandatory periodic payment of future damages in excess of $250,000. Parties may agree to lump sum payment.

ALTERNATIVES TO LITIGATION

1991 (N.Y. CPLR Sect. 3045) Defendant may concede liability if plaintiff agrees to arbitrate. If plaintiff refuses, defendant's concession of liability cannot be used for any other purpose. (N.Y. Public Health Sec. 4406-2) HMOs can put arbitration clauses in contracts but cannot require arbitration as a condition of joining.

NORTH CAROLINA

PRETRIAL SCREENING PANELS

(see "Alternatives to Litigation" below)

STATUTE OF LIMITATIONS

1979 (N.C. Gen. Stat. 1-15) Three years from date of injury but not more than 4 years after injury. Foreign object: 1 year from discovery, but not more than 10 years from last act. The North Carolina Court of Appeals upheld the constitutionality of the statute in Roberts v. Durham County Hospital Corp., 289 S.E. 2d 875 (N.C. App. 1982)

ALTERNATIVES TO LITIGATION

1973 (N.C. Gen Stat. 1-567.1) Uniform Arbitration Act provisions; parties may agree in writing to arbitration. Enforceable unless there are grounds for revocation. 1991 - pilot program established to require pretrial mediation of civil actions, including medical liability suits (program ends in 1995).

NORTH DAKOTA

REPEALED 1981-1977 (N.D. Cent. Code 26-40.1-17) Mandatory submission of medica injury claims to a medica review panel. The report of the panel is admissible at any subsequent trial.

EXPERT AFFIDAVIT

AMENDED 1997 (N.D. Cent. Code 28-01-46) Medical malpractice case must be dismissed without prejudice unless the claimant obtains an admissible expert opinion within three months of commencement of the action or a date determined by the court.

STATUTE OF LIMITATIONS

AMENDED 1985-1975 (N.D. Cent. Code 28-01-18;25) Two years from discovery but not more than 6 years after act, unless discovery prevented by fraudulent conduct of defendant. Disability, except minority, tolls statute for 5 years; in no case after 1 year from removal of disability or 6 years total. Minors: 12 years.

LIMITS ON DAMAGE AWARDS

1987 (N.D. Cent. Code 32-03.2-09) Awards over $250,000 may be subject to court review for reasonableness. A $300,000 limit on medical liability awards was struck down as unconstitutional in Arneson v. Olson, 270 N.W. 2d 125 (N.D. 1978). Amended 1995 (N.D. Cent. Code 32-50-24.1) limits noneconomic damages in medical liability actions to $500,000.

COLLATERAL SOURCE RULES

1987 (N.D. Cent. Code sec. 32-03.2-06) Discretionary offset of collateral sources, excluding life insurance, death or retirement benefits or any insurance purchased by recovering party. An earlier discretionary offset in cases involving $100,000 or more was found unconstitutional in Arneson v. Olson, 270 N.W.2d (1978).

PERIODIC PAYMENT OF DAMAGE AWARDS

1987 (N.D. Cent. Code 32-03.2-09) Discretionary periodic payment of future economic damages for continuing institutional or custodial care for a period or more than two years; adequacy of payments subject to continuing court review.

ALTERNATIVES TO LITIGATION

1987 (N.D. Cent. Code 32-29.2-01-2-20) Uniform Arbitration Act procedures.

EXPERT WITNESS RULES

1975 (N.D. Cent. Code 2743.43) Expert testimony limited to licensed physician or surgeon who devotes 3/4 time to active clinical practice or teaching.

OHIO

IMMUNITY

1977 (Ohio Rev. Code. Ann. 2305.23) No person shall be liable for ordinary negligence for rendering emergency care at the scene of emergency, outside of hospital or doctor's office.

PRETRIAL SCREENING PANELS

AMENDED 1987--1975 (Ohio Rev. Code Ann. 2711.21) Voluntary submission of medical injury claims to an "arbitration board" upon agreement of all parties. Decision is not admissible at any subsequent trial. Prior to 1987 amendment, submission was mandatory and results were admissible. The Ohio Supreme Court upheld the 1975 statute in Beatty v. Akron City Hospital, 424 N.E. 2d 586 (Ohio)(1981).

STATUTE OF LIMITATIONS

1990 (Ohio Rev. Code Ann. 2305.11 B(1)) One year after the action accrues (discovery). If plaintiff gives written notice before the 1 year expires, suit may be brought within 180 days of the notice. Persons with legal disability must bring suit within 4 years after occurrence.

LIMITS ON DAMAGE AWARDS

1975 (Ohio Rev. Code Ann. 2307.43) A $200,000 limit on general damages in medical claims was struck down as unconstitutional in Duren v. Suburban Community Hospital, 495 N. E. 2d (Court of Common Pleas 1985); Galayada v. Lake Hospital System, no. 63 151, Ohio App. Ct., 8th dist., Sept. 30, 1993. Jeanne and Chrystal v. The Hawks Hospital of Mt. Carmel, no. 90-AP-599, Ohio App. Ct., 10th Dist., May 23, 1991; Morris v. Savoy, no. 89-1807, Ohio Sup. Ct., August 27, 1991.

A $250,000 limit on noneconomic damages was found unconstitutional in Gladon v. Greater Cleveland Regional Transit Authority, No. 64029, Ohio App. Ct., 8th App. Desk., Cuyahoga County, March 1, 1994.

COLLATERAL SOURCE RULES

1975 (Ohio Rev. Code Ann. sec. 2305.27) Mandatory offset of collateral sources in medical actions, except for insurance benefits paid for by plaintiff or employer. This statute was held constitutional two times by the 8th District in Morris, et al. v. Savoy. No. 89-1807, Ohio Sup. Ct., August 27, 1991 and Charles William May v. Tandy Corp., et al., No. 62679, Ohio App. Ct., 8th App. Dist., Cuyahoga Co., June 1993 and Gladon v. Greater Cleveland, Regional Transit Authority, No. 64029, Ohio App. Ct., 8th App. Dist., Cuyahoga County, March 1994. This statute was held unconstitutional by the Court of Appeals of Ohio (11th District) in Schenk v. The Cleveland Electric Illuminating Company, No. 92-L-161, March 4, 1994.

PERIODIC PAYMENT OF DAMAGE AWARDS

1987 (Ohio Rev. Code Ann. 2323.57) Mandatory periodic payment of future damages over $200,000.

ALTERNATIVES TO LITIGATION

1975 (Ohio Rev. Code Ann. 24, 6 2711.22-24) Parties may enter into written, irrevocable arbitration agreements before services provided.

OKLAHOMA

ATTORNEY FEES

1953 (Okla. Stat. tit. 5, 7) Maximum percentage: fee may not exceed 50% of net judgement.

STATUTE OF LIMITATIONS

1987 (Okla. Stat. tit. 76 s. 18 and tit. 12 s. 96) Two years from discovery. If under legal disability when medical injury occurs, statute tolls until one year after disability abates. Minors under 12: 7 years. Minors over 12: 1 year after attaining majority but in no event less than 2 years from date of injury. Incompetents: 7 years from injury unless adjudged incompetent; then within 1 year after such adjudication, but in no event less than two years from date of injury. Court upheld two year period of limitations as constitutional. McCarroll v. Doctors General Hospital, 664 P. 2d 382 (Okla. 1983).

LIMITS ON DAMAGE AWARDS

1976 (Okla. Stat. tit. 76,18) Any action for medical injury brought more than 3 years from date of injury shall be limited to actual medical and surgical expenses incurred, or to be incurred, as a direct result of such injury. The Oklahoma Supreme Court struck down the statute as unconstitutional in Reynolds v. Porter, 760 P.2d 816 (Okla. 1988).

ALTERNATIVES TO LITIGATION

1978 (Okla. Stat. tit. 15 801 et seq.) Uniform Arbitration Act provisions; parties may agree in writing to arbitration.

OREGON

ATTORNEY FEES

REPEALED 1987--1975 (Or. Rev. Stat. 752.150) Plaintiff's attorney in medical action shall not receive more than 33 1/3% of the monies awarded to the plaintiff.

IMMUNITY

AMENDED 1989-1967 (Or. Rev. Stat. 30.800) Immunity from civil liability for persons providing emergency medical assistance.

STATUTE OF LIMITATIONS

AMENDED 1987-1975 (Or. Rev. Stat. 12.110;160) Two years from discovery; but not more than 5 years from act, unless fraud. If fraud, 2 years from discovery or reasonable discovery. Minors or legal disability at time of injury: 5 years from accrual or 1 year after disability ceases.

LIMITS ON DAMAGE AWARDS

1989 (Or. Rev. Stat. 18.550) No punitive damages awarded against licensed physician unless malice is shown. 1987 (Or. Rev. Stat. 18.560) Noneconomic damages in a personal injury action limited to $500,000.

COLLATERAL SOURCE RULES

1987 (Or. Rev. Stat. sec. 18.580) Discretionary offset of collateral sources by court, except benefits plaintiff must repay, life insurance, retirement, disability, pension plans or social security.

PERIODIC PAYMENT OF DAMAGE AWARDS

REPEALED 1987-1975 (Or. Rev. Stat. 752.070) Discretionary periodic payment of damages paid from the state Patient Compensation Fund. (PCF never activated).

ALTERNATIVES TO LITIGATION

AMENDED 1989-1979 (Or. Rev. Stat. 36.300) Uniform Arbitration Act provisions.

PENNSYLVANIA

ATTORNEY FEES

1975 (Pa. Stat. Ann. tit. 40,1301/604) Sliding scale: 30% of first $100,000 awarded; 25% of second $100,000 awarded, and 20 % of the balance.

PRETRIAL SCREENING PANELS

1975 (Pa. Stat. Ann. tit. 40, 1301.308) Mandatory submission of medical injury claims to an "arbitration panel." The findings of fact by panel are admissible at any subsequent trial. Any panel award of damages is not admissible at any subsequent trial. The Pennsylvania Supreme Court struck down the requirement making submitting of a claim to the panel mandatory in Mattes v. Thompson, 421 A. 2d 190 (Pa. 1980). Panels may exist as long as participation is voluntary and the outcome is not binding.

STATUTE OF LIMITATIONS

1975 (Pa. Sat. Ann. tit. 40,1301.605) Two years from injury or discovery. If filed after 4 years, claim will be defended and paid by Medical Professional Liability Catastrophe Fund.

COLLATERAL SOURCE RULES

1975 (Pa. Stat. Ann. tit. 40, sec. 1301.602) Mandatory offset of collateral sources in medical liability actions found unconstitutional by the Pennsylvania Supreme Court in Mattos v. Thompson, 421 A. 2d 190 (Pa. 1980).

RHODE ISLAND

PRETRIAL SCREENING PANELS

REPEALED 1981--1976 (R.I. Gen. Laws 10-19-1 to -10) Only those persons whose knowledge, skill, experience or training qualifies them as experts will be permitted to testify. The pretrial screening panels were found unconstitutional in Boucher v. Sayeed, 459 A. 2d 87 (R.I. 1983).

STATUTE OF LIMITATIONS

AMENDED 1988-1976 (R.I. Gen. Laws 9-1-14-1) Three years from injury or 3 years from discovery. Minors and incompetents: 1 year from date of removal of disability.

COLLATERAL SOURCE RULES

1986 (R.I. Gen. Laws sec. 9-19-34-1) Mandatory offset by court in medical liability actions, if evidence is admitted.

PERIODIC PAYMENT OF DAMAGE AWARDS

AMENDED 1987-1986 (R.I. Gen. Laws 9-21-12;13) Mandatory conference on periodic payment where judgement exceeds $150,000.

ALTERNATIVES TO LITIGATION

Reenacted 1985-1929 (R.I. Gen. Laws 10-3-1) Uniform Arbitration Act provisions.

SOUTH CAROLINA

PERIODIC PAYMENT OF DAMAGE AWARDS

1976 (S.C. Code Ann. 38-79-480) Discretionary periodic payment of damages paid from the PCF where liability exceeds $100,000.

STATUTE OF LIMITATIONS

AMENDED 1988-1977 (S.C. code Ann. 15-3545) Three years from injury or discovery, but not more than 6 years after act. Foreign object: 2 years from discovery. Minors: tolled until majority, then 1 year.

ALTERNATIVES TO LITIGATION

1978 (S.C. Code Ann. 15-48-10) Uniform Arbitration Act provisions. Excludes pre-treatment contracts for health care and personal injury claims.

SOUTH DAKOTA

IMMUNITY

AMENDED 1976-1961 (S.D. Codified Laws Ann. 20-9-3; 4.2) Licensed medical practitioners immune from civil liability for good faith emergency care, including emergency care to minors without consent. 1993 - Liability limited for health care professionals volunteering health care services at free clinics.

STATUTE OF LIMITATIONS

AMENDED 1977-1877 (S.D. Codified Laws Ann. 15-2-14.1) Two years from injury. The South Dakota Supreme Court rejected the discovery rule in Alberts v. Giebink, 299 N.W. 2d 454 (1980).

LIMITS ON DAMAGE AWARDS

1986 (S.D. Codified Laws Ann. 21.3-11) Total damages awarded by court or through binding arbitration may not exceed one million dollars. Prior to 1986 amendment, the limit on damages was $500,000.

COLLATERAL SOURCE RULES

1977 (S.D. Codified Laws Ann. sec. 21-3-12) Discretionary offset in medical liability cases, except benefits that have a right if subrogation or were paid for by plaintiff.

PERIODIC PAYMENT OF DAMAGE AWARDS

EFFECTIVE July 1, 1988--1986 (S.D. Codified Laws Ann. 21-3A-1 to 013) Mandatory periodic payment of future damages in excess of $200,000.

ALTERNATIVES TO LITIGATION

1976 (S.D. Codified Laws Ann. 21-25B-1) Parties may agree to arbitrate for past and future services. Revocable as to future services.

TENNESSEE

ATTORNEY FEES

1975 (Tenn. Code Ann. 29-26-120) Plaintiff's attorney fees in a medical injury suit shall not exceed 33 1/3% of all damages awarded.

PRETRIAL SCREENING PANELS

REPEALED 1985-1975 (Tenn. Code Ann. 29-26-101, 114) Mandatory submission of medical injury claims to a "malpractice review board." The recommendations of the panel are admissible at any subsequent trial.

STATUTE OF LIMITATIONS

1975 (Tenn. Code Ann. 29-26-116) One year from discovery, but no more than 3 years from act unless fraud. Foreign object: 1 year from discovery. The Tennessee Supreme Court upheld the constitutionality of this statute in Harrison v. Schrader, 569 S.W. 2d 822 (Tenn. 1982).

COLLATERAL SOURCE RULES

1975 (Tenn. Code Ann. sec. 29-26-119) Mandatory offset except for assets purchased by plaintiff or private insurance.

EXPERT WITNESS RULES

1975 (Tenn. Code Ann. 29-26-115(b)). Expert witness must be licensed in Tennessee or contiguous state and practice for one year preceding date of injury.

ALTERNATIVES TO LITIGATION

1983 (Tenn. Code Ann. 29-5-30) Uniform Arbitration Act provisions.

TEXAS

STATUTE OF LIMITATIONS

SUNSET 1993-1977 (Tex. Rev. Stat. Ann. art. 4590i, 10.01) Two years from occurrence (discovery--see note below). Minors under 12: until 14th birthday to file suit. Otherwise applies to all regardless of minority or disability. The Texas Supreme Court struck down the original interpretation of the statute of limitations as unconstitutional, essentially changing Texas to a discovery rule state, in Meagle v. Nelson, No. C-2576, slip. op. January 30, 1985); see also Sax v. Votteler, 645 S.W. 2d 661 (Tex. 1983).

LIMITS ON DAMAGES AWARDS

SUNSET 1993-1977 (Tex. Rev. Civ. Stat. Ann. art. 4509i, 11.02-.04) Medical injury liability limited to $500,000. Limit inapplicable to costs for past and future medical care. If the above limit is stricken by courts, the limit for noneconomic losses shall be $150,000. Limits to be decreased according to the consumer price index between the effective date of the statute and the time at which damages are awarded. The Texas Supreme Court struck down this statute as unconstitutional in Lucas v. United States, 757 S.W. 2d 687 (Tex. 1988). The Texas Supreme Court subsequently found the limit constitutional only in wrongful death cases in Rose v. Doctors Hosp., 801 S.W.2d 841 (Tex. 1990).

ALTERNATIVES TO LITIGATION

1979 (Tex. Civ. Stat. arts. 224-238.6) Uniform Arbitration Act provisions. Does not apply to personal injury actions except upon written advice of counsel to both parties.

UTAH

ATTORNEY FEES

1985 (Utah Code Ann. 78.14-7.5) Contingency fee shall not exceed 33 1/3% of award.

PRETRIAL SCREENING PANELS

Mandatory submission of claims to panel. Panel recommendations are not admissible at a subsequent trial.

STATUTE OF LIMITATIONS

1985 (Utah Code Ann. 78-14-12-to-16) Two years from discovery but not more than 4 years from act. Foreign object or fraud: 1 year from discovery. Applies regardless of minority or disability. The minority provision was held unconstitutional by the Utah Supreme court in Lee v. Dr. Lynn Craufin; Griffith v. Dr. J. Dallas Van Wagoner, nos. 20995, 21063, 90095, Utah Supreme Court, Nov. 30, 1993. This reversed an earlier decision in Allen v. International Health Care, Inc., 635 p. 2d 30 (1981)

LIMITS ON DAMAGE AWARDS

1986 (Utah Code Ann. 78-14-7.1) Noneconomic losses may not exceed $250,000.

COLLATERAL SOURCE RULES

1985 (Utah Code Ann. sec. 78-14-4.5) Mandatory offset by court except for benefits where subrogation rights exist.

PERIODIC PAYMENT OF DAMAGE AWARDS

1986 (Utah Code Ann. 78-14-9.5) Mandatory periodic payment of future damages that exceed $100,000.

ALTERNATIVES TO LITIGATION

1985 (Utah Code Ann. 78-14-16) Decision of prelitigation panel may be considered binding arbitration upon written agreement of parties. AMENDED 1997 180 day time limit for prelitigation hearings and permits parties to stipulate bypassing prelitigation process.

VERMONT

IMMUNITY

1981 (Vt. Sat. Ann. tit. 18 906) Volunteers providing emergency care are immune from civil liability for ordinary negligence in the rendering of such care.

PRETRIAL SCREENING PANELS

(see "Alternatives to Litigation" below)

STATUTE OF LIMITATIONS

1977 (Vt. Stat. Ann. tit. 12 521) Three years from injury or 2 years from discovery or discoverability, but no more than 7 years from act. Foreign object: 2 years from discovery.

ALTERNATIVES TO LITIGATION

1975 (Vt. Stat. Ann. tit. 12 7001-7008) Voluntary arbitration may be decided on by plaintiff prior to trial. A party may withdraw from the arbitration with written consent of all other parties. AMENDED 1991 (contingent on passage of a universal health care coverage plan) Vermont's voluntary arbitration statute for medical liability claims made a mandatory process. The arbitration board's decision would be binding if there is a prior agreement between the parties to make it so the boards decision would also be admissible as evidence at a subsequent trial. The board's effectiveness would be studied after 3 years of operation.

VIRGINIA

IMMUNITY

1987 (Va. Code 38.2-5000-5021) Immunity from civil liability for physicians participating in state program providing obstetrical services to low income women. State fund pays damages for birth related neurological injuries sustained by child.

PRETRIAL SCREENING PANELS

1976 (Va. Code 8.01-581 to 581.12:2) Voluntary submission of medical injury claims upon request of any party. The panel decision is admissible at any subsequent trial. The Virginia Supreme Court has upheld the constitutionality of this statute in Speet v. Bauaj, 377 S.E. 2d 397 (Va. 1989).

STATUTE OF LIMITATIONS

1987-1959 (Va. Code 8.01-243) Two years from accrual (date of injury) but not more than 10 years beyond accrual date. Foreign object or fraud: 1 year from discovery. Infants: 5 years from date of accrual of cause of action. 1987 (Va. Code 8.01-243.1) For claims accruing on or after July 1, 1987. Minors at time of accrual of cause action: 2 years after last treatment unless minor under 8 years, then until 10th birthday. Minors who were 10 or older on or before July 1, 1987: 2 years from that date to bring an action.

LIMITS ON DAMAGE AWARDS

AMENDED 1983-1976 (Va. Code 8.01-581.15) Medical liability damages are limited to one million dollars. (Prior to 1983, limit was $750,000). The Virginia Supreme Court held this limit constitutional in Etheridge v. Medical Center Hospitals, 376 S.E.2d 525 (Va. 1989).

ALTERNATIVES TO LITIGATION

1976 (Va. Code 8.01-581-12) Voluntary arbitration permitted. Liability insurers may be bound by arbitration if they agreed to be so bound before submission of a claim.

WASHINGTON

ATTORNEY FEES

1976 (Wash. Rev. Code 7.70.070) In any medical injury the court shall determine the reasonableness of each party's attorney fees.

STATUTE OF LIMITATIONS

AMENDED 1987-1971 (Wash. Rev. Code 4.16.350) Three years from injury or 1 year from discovery, but not more than 8 years after act. Fraud or concealment tolls statute. Foreign object: 1 year from discovery. The Washington Appellate Court has upheld the statute on constitutional ground. Duffy v. King Chiro. Practice Clinic, 565 p.2d 435 (Wash. App. 1977).

LIMITS ON DAMAGE AWARDS

1986 (Wash. Rev. Code 4.56.250) Noneconomic damages in person injury suit may not exceed an amount determined by multiplying 0.43 by the average annual wage in Washington and by the life expectancy of the person incurring noneconomic damages. A plaintiff's life expectancy shall not be less that 15 years for the purpose of determining maximum noneconomic damages. The Washington Supreme Court struck down the statute as unconstitutional in Sofie v. Fibreboard Corporation, 771 P.2d 711 (Wash. 1989).

COLLATERAL SOURCE RULES

1976 (Wash. Rev. Code sec.7.70.080) Information on collateral sources may be introduced except for insurance purchased by plaintiff or employer.

PERIODIC PAYMENT OF DAMAGE AWARDS

1986 (Wash. Rev. Code 4.56.260) Mandatory periodic payments in personal injury actions of future economic damages of $100,000 or more.

WEST VIRGINIA

IMMUNITY

AMENDED 1985-1967 Physicians providing voluntary emergency care at scene immune from civil liability.

STATUTE OF LIMITATIONS

1986 (W. Va. Code 55-78-4) Two years within date of injury or discovery, whichever occurs last. In no event longer than 10 years after date of injury. Minors under 10: 2 years from injury or by 12th birthday, whichever provides a longer period. Statute tolled for any period during which fraud or concealment prevents discovery.

EXPERT WITNESS RULES

1986 (W. Va. Code 55-75-7) Expert witness must be licensed physician and engaged in the same or substantially similar medical field as defendant.

LIMITS ON DAMAGE AWARDS

1986 (W. Va. Code 55-78-9) Noneconomic damages in a medical injury suit shall not exceed one million dollars and the jury must be so instructed. This statute was ruled constitutional in Robinson v. Charleston Area Medical Center, no. 20109, W. Va. Sup. Ct. App., December 20, 1991.

WISCONSIN

ATTORNEY FEES

1986 (Wisc. Stat. sec. 655.013) Sliding scale may not exceed: 33.33% of first $1 million or 25% of first $1 million recovered if liability is stipulated within 180 days, and not later than 60 days before the first day of trial and 20% of any amount exceeding $1 million.

PRETRIAL SCREENING PANELS

REPEALED 1986--1977 (Wis. Stat. 655.01-.03) Mandatory submission of medical injury claim. Findings of panel, except as to damages, are admissible at any subsequent trial. The findings informal panels are not admissible at any subsequent trial. In 1986, the pretrial screening panel was replaced by the mandatory mediation panel.

STATUTE OF LIMITATIONS

EXPIRED 1979 (Wis. Stat. 8.93.55) Three years from injury or 1 year from discovery, but not more than 5 years from act. Foreign object: 1 year from discovery. The Wisconsin Supreme Court upheld the constitutionality of the predecessor statute. Rod v. Farrell, 291 N.W. 2d 568 (1980). 1977 (Wis. Stat. 893.56) Actions by minors governed by provisions in 8.93.55 or must bring suit when 10 years old, whichever is later.

LIMITS ON DAMAGE AWARDS

1985 (Wis. Stat. 893.35) Noneconomic damages in a medical injury suit may not exceed one million dollars. This limit shall be annually adjusted to reflect changes in the consumer price index. Limit expired January 1, 1991. The Wisconsin Supreme Court affirmed that noneconomic damages are now unlimited in Jelenik v. The Saint Paul Fire and Casualty Insurance Company, No. 92-1858, Wis. Sup. Ct., March 14, 1994. Amended 1995 (Wis. Stat. 893.55 (4) (d) limits noneconomic damages in medical liability actions to $350,000 indexed for inflation.

PERIODIC PAYMENT OF DAMAGE AWARDS

1975 (Wis. Stat. 655.015) Mandatory periodic payment from Patient Compensation Fund where future medical expenses exceed $25,000 for awards or settlements made before June, 14, 1986. The Wisconsin Supreme Court upheld the statute on constitutional ground in State ex re. Strykowski v. Wilkie, 261 N.W. 2d 434 (Wis. 1978). 1975 (Wis. Stat. 655.27(5)(d)) Mandatory periodic payments where the PCF liability exceeds one million dollars. In such cases, the fund shall not pay more than $500,000 per year.

ALTERNATIVES TO LITIGATION

AMENDED 1989-1985 (Wisc. Stat. 655.42 et seq.) The director of state courts established a mediation system by September 1, 1986.

WYOMING

ATTORNEY FEES

1977 (Wyoming Court Rules Governing Contingent Fees, Rule 6) The court shall rule on the reasonableness of contingent fee arrangements, upon request of the plaintiff.

PRETRIAL SCREENING PANELS

1989 (Wyo. Stat. 9-2-1701 to -1712) Mandatory submission of all professional malpractice claims to a "professional review panel." The decision of the panel is not admissible at any subsequent trial. 1986 (Wyo. Stat. 9-2-1501 to 1512) Mandatory submission of all medical injury claims to a "medical review panel." The decision of the panel is not admissible at any subsequent trial. The Wyoming Supreme Court struck down the 1986 statute in Hoem v. Wyoming, 756 P.2d 780 (Wyo. 1988)

STATUTE OF LIMITATIONS

1977 (Wyo. Stat. 1-3-107) Two years from injury but if discovered in 2nd year plaintiff gets 6 mos. extension. If discovered after 2 years, plaintiff has 2 years from discovery.

SOURCES:

(1) Bannon, Nancy, American Medical Association, Tort Reform Compendium, (1989).

(2) Department of Health and Human Services, Agency for Health Care Policy and Research, Compendium of State Systems for Resolution of Medical Injury Claims, (1991).

(3) U.S. Congress, Office of Technology Assessment, Impact of Legal Reforms on Medical Malpractice Costs, (1993)

Supplemented by materials from the American Tort Reform Association. Prepared by Anne Allen, 1994.

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