Medical Liability Reform - ATRA

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 Opinion:

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.

Expert Witness- Daubert Reform: H.B. 153 (2017)

Missouri|2017

Increases the standards for admitting expert evidence by adopting the

Increases the standards for admitting expert evidence by adopting the Daubert standard. Specifically, the legislation establishes that an expert witness may testify if: (1) the expert’s specialized knowledge will help the trier of fact to understand the evidence; (2) the testimony is based on sufficient facts or data; (3) the testimony is the product of reliable principles and methods; and (4) the expert has reliably applied the principles and methods to the facts of the case.

Unchallenged

Rural Health Care Act: H.B. 18 (1989)

Texas|1989

Requires that juries be instructed that a bad medical outcome

Requires that juries be instructed that a bad medical outcome does not necessarily justify a finding of negligence. Requires that expert witnesses be practicing physicians. Indemnifies physicians with a case load of 10% or more charity cases. Note: under the Act, OB-GYN’s and emergency room physicians would be indemnified for the first $100,000 and all physicians meeting the patient load, risk management and insurance requirements would be
indemnified for the first $25,000.

Unchallenged

Medical Liability Reform: S.B. 1497 (1995)

New Jersey|1995

Limits health care providers’ liability for harm caused by certain

Limits health care providers’ liability for harm caused by certain medical devices.

Unchallenged

Post-Judgment Interest: H.B. 2162 (1994)

Arizona|1994

Applies only to postjudgment interest on medical liability actions, including

Applies only to postjudgment interest on medical liability actions, including those resolved through ADR. The postjudgment interest rate is tied to the federal postjudgment interest rate and now has a floor of 3% and a ceiling of 9%.

Unchallenged

Medical Liability Reform: H.B. 1359 (1993)

Maryland|1993

Provides a defense from liability for physicians who adhere to

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.

Unchallenged

Medical Liability Reform: S.B. 1253 (1993)

South Dakota|1993

Limits liability for health care professionals volunteering health care services

Limits liability for health care professionals volunteering health care services at free clinics.

Unchallenged

Medical Liability: H.F. 2800 (1992)

Minnesota|1992

A comprehensive health care access act which contains a provision

A comprehensive health care access act which contains a provision for an absolute defense against medical liability when doctors adhere to practice parameters. Non-compliance to practice parameters may not be used as a basis for a cause of action.

Unchallenged

Medical Liability: H.B. 733 (1992)

Vermont|1992

Makes Vermont’s current voluntary arbitration statutes for medical liability claims

Makes Vermont’s current voluntary arbitration statutes for medical liability claims a mandatory process. The arbitration’s board’s decision would be binding if there is a prior agreement between the parties to make it so. The board’s decision would also be admissible as evidence at a subsequent trial. The board’s effectiveness would be studied after three years of operation.

Unchallenged

Medical Liability Reform: S.B. 2217 (1997)

North Dakota|1997

Requires that a medical liability case must be dismissed without

Requires that a medical liability 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.

Unchallenged

Medical Liability Reform: H.B. 1351 (1997)

North Dakota|1997

Provides that a person brings suit for medical liability waives

Provides that a person brings suit for medical liability waives medical privilege as to medical records, opinions, and information with other physicians having examined that party.

Unchallenged

Certificate of Merit: S.F. 627 (1997)

Minnesota|1997

Requires a certificate of merit prior to filing claims against

Requires a certificate of merit prior to filing claims against licensed professionals.

Unchallenged

Statute of Limitations- H.F. 693 (1997)

Iowa

Establishes a medical liability statute of limitations for minors under

Establishes a medical liability statute of limitations for minors under age 8 until the minor’s 10th birthday.

Unchallenged

Statute of Repose for Medical Liability: S.B. 2192 (1998)

Mississippi|1998

Establishes a seven-year statute of repose in medical liability actions and

Establishes a seven-year statute of repose in medical liability actions and creates exceptions for fraudulent concealment and foreign objects

Unchallenged

Physician Testimony Reform: H.B. 37 (2002)

Virginia|2002

Clarified that: (1) a treating physician can be called to

Clarified 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.

Unchallenged

Medical Liability Reform: H.B. 112 (2002)

Virginia|2002

Added “health care facility” to the definition of “health care

Added “health care facility” to the definition of “health care provider” in the Health Care Malpractice Act. The law assured that the state’s medical liability reforms apply to nursing care facilities and residential assisted living facilities.

Unchallenged

Medical Liability Reform: H.B. 97 (2003)

Wyoming|2003

Provided immunity from liability for volunteer health care professionals at

Provided immunity from liability for volunteer health care professionals at nonprofit health care facilities.

Unchallenged

Medical Liability Reform- Expert Witness: H.B. 1906 (2003)

Virginia|2003

Limited the number of expert witnesses that can be called

Limited the number of expert witnesses that can be called to testify in medical liability cases.

Unchallenged

Medical Liability Reform- Arbitration: S.B. 138 (2003)

Utah|2003

Provided that physicians are allowed to withhold services, except in

Provided that physicians are allowed to withhold services, except in emergencies, if patient does not consent to arbitration (oral and written consent).

Unchallenged

Medical Liability Reform- Medical Professional Corporations: H.B. 1012 (2003)

Colorado|2003

Prohibited medical malpractice lawsuits against medical professional corporations including

Prohibited medical malpractice lawsuits against medical professional corporations including professional service corporations, limited liability companies, and registered limited liability partnerships.

Unchallenged

Medical Liability Reform: Expert Witness Testimony

Arkansas|2003

Required that expert medical negligence testimony come from a physician

Required that expert medical negligence testimony come from a physician licensed in the same specialty as the defendant.

Unchallenged

Broussard v. St. Edward Mercy Health Sys., Inc., 386 S.W.3d 385 (Ark. 2012).

Medical Liability Reform- Damage Awards: H.B. 1038 (2003)

Arkansas|2003

Required evidence of damages for the cost of medical expenses

Required evidence of damages for the cost of medical expenses to be actual or paid expenses.

Challenged and Struck Down

Johnson v. Rockwell Automation, Inc. 308 S.W.3d 135 (Ark. 2009).

Medical Liability Reform- Certificate of Merit: H.B. 1038 (2003)

Arkansas|2003

Required a certificate of merit to be filed in medical

Required a certificate of merit to be filed in medical malpractice cases in which expert testimony is required.

Unchallenged

Medical Liability Reform- Innocent Prescriber: H.B. 2011 (2005)

West Virginia|2005

Provided that no health care provider is liable to a

Provided 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.

Unchallenged

Medical Liability Reform- Expressions of Sympathy: H.B. 3174 (2005)

West Virginia|2005

Provided that no statement, affirmation, gesture or conduct of a

Provided 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.

Unchallenged

Medical Liability Reform- Mediation: S. 83 (2005)

South Carolina|2005

Required that prior to filing an action, the plaintiff must

Required 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.

Unchallenged

Medical Liability Reform- Emergency Situations: S. 83 (2005)

South Carolina|2005

Provided that a physician is not liable for claims arising

Provided 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.

Unchallenged

Expert Witness Standards Reform: S. 83 (2005)

South Carolina|2005

In an action against a professional (such as physicians, medical

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.

Unchallenged

Medical Liability Reform- Pretrial Screening Panels: S.B. 214 (2005)

New Hampshire|2005

Created a pre-trial screening panel requiring all medical liability cases

Created 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 required 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 required liability insurers to report certain data to the New Hampshire Department of Insurance annually.

Unchallenged

Medical Liability Reform- Expert Witness Standards: H.B. 64 (2005)

Montana|2005

Provided that an expert witness: must be a licensed health

Provided 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.

Unchallenged

Medical Liability Reform- Expressions of Sympathy: H.B. 24 (2005)

Montana|2005

Provided that statements of sympathy, apology, etc. by medical providers

Provided that statements of sympathy, apology, etc. by medical providers are inadmissible as evidence of liability in medical liability cases.

Unchallenged

Medical Liability Reform- Volunteer Immunity: H.B. 393 (2005)

Missouri|2005

Provided civil immunity from damages for physicians who provide uncompensated

Provided civil immunity from damages for physicians who provide uncompensated medial care (volunteer services).

Unchallenged

Medical Liability Reform- Statute of Limitations for Minors: H.B. 393 (2005)

Missouri|2005

Specified that actions against physicians and other health care providers

Specified that actions against physicians and other health care providers for malpractice must be brought within two years of a minor’s eighteenth birthday.

Unchallenged

Medical Liability- Expression of Sympathy: H.B. 393 (2005)

Missouri|2005

Prohibited statements, writings, or benevolent gestures expressing sympathy by medical

Prohibited statements, writings, or benevolent gestures expressing sympathy by medical providers from being admitted into evidence.

Unchallenged

Medical Liability Reform- Emergency Medical Situations: S.B. 3 (2005)

Georgia|2005

Provided that in claims arising out of the provision of

Provided 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.

Unchallenged

Expressions of Sympathy: S.B. 3 (2005)

Georgia|2005

Provided that expressions of sympathy, regret, apology, etc. by healthcare

Provided that expressions of sympathy, regret, apology, etc. by healthcare providers are inadmissible as evidence and shall not constitute an admission of liability.

Unchallenged

Medical Liability Reform- Noneconomic Damage Limits: A.B. 1073 (2006)

Wisconsin|2006

Limited noneconomic damages in medical liability cases to $750,000.

Limited noneconomic damages in medical liability cases to $750,000.

Unchallenged

Medical Liability Reform- Frivolous Lawsuits: H.B. 2292 (2006).

Washington|2006

Provided that an attorney filing a claim must certify that

Provided that an attorney filing a claim must certify that to the best of the party’s or attorney’s knowledge, the claim is well grounded in fact and is warranted by existing law or good faith arguments. If an attorney is found in violation of this rule, the court may impose an appropriate sanction to include an order to pay defendant costs, including a reasonable attorney fee.

Challenged and Struck Down

DeYoung v. Providence Med. Ctr., 960 P.2d 919 (Wash. 1998)

Medical Liability Reform- Collateral Source Rule: H.B. 2292 (2006)

Washington|2006

Provided for the admissibility of evidence that the plaintiff has

Provided for the admissibility of evidence that the plaintiff has already been compensated for the injury from any source except for the assets of the plaintiff, plaintiff’s representative, or the plaintiff’s immediate family. Plaintiff may also present evidence of an obligation to repay any compensation.

Unchallenged

Medical Liability Reform- Voluntary Arbitration: H.B. 2292 (2006)

Washington|2006

Allowed parties in an action to elect to submit the

Allowed parties in an action to elect to submit the dispute to arbitration.

Unchallenged

Medical Liability Reform: Statute of Repose: H.B. 2292 (2006)

Washington|2006

Reenacted the eight-year statute of repose for medical liability cases.

Reenacted the eight-year statute of repose for medical liability cases.

Unchallenged

Medical Liabiliy Reform- Expressions of Sympathy: H.B. 2292 (2006)

Washington|2006

Provided that expressions of sympathy, regret, apology, etc. by healthcare

Provided that expressions of sympathy, regret, apology, etc. by healthcare providers are inadmissible as evidence and shall not constitute an admission of liability.

Unchallenged

Medical Liability Reform- Volunteer Legal Protection: S.B. 930 (2007)

Oklahoma|2007

Allowed charitable health care providers rendering professional services gratuitously to

Allowed charitable health care providers rendering professional services gratuitously to be exempt from legal liability.

Unchallenged

Medical Liability Reform- Expressions of Sympathy: H.B. 1333 (2007)

North Dakota|2007

Provided that a statement, affirmation, gesture, or conduct of a

Provided that a statement, affirmation, gesture, or conduct of a health care provider or their employee or agent that expresses apology, sympathy, commiseration, condolence, compassion, or benevolence to a patient is not admissible as evidence of liability.

Unchallenged

Medical Liability Reform- Frivolous Lawsuit Reduction: S.B. 2001 (2008)

Tennessee|2008

Requires any person asserting claim for medical negligence to give

Requires any person asserting claim for medical negligence to give written notice to each alleged negligent healthcare provider at least 60 days before filing suit.

Challenged and Upheld

Williams v. SMZ Specialists, P.C., 2013 WL 1701843 (Tenn. Ct. App. Apr. 19, 2013).

“Good Samaritan” Law: H.B. 89 (2008)

Georgia|2008

Provides businesses and non-profits some liability protection when performing acts

Provides businesses and non-profits some liability protection when performing acts in a time of emergency or crisis in coordination with a state agency.

Unchallenged

Medical Liability Reform: S.B. 1018 (2009)

Arizona|2009

Raised the burden of proof in medical liability actions against

Raised the burden of proof in medical liability actions against healthcare providers and hospitals to clear and convincing evidence in connection with certain emergency medical services.

Unchallenged

Health Care Malpractice Act: S.B. 145 (2010)

Utah|2010

Created a statute of repose that requires all claims to

Created a statute of repose that requires all claims to be brought within 10 years or they are barred. Placed limitations on noneconomic damages of $350,000 for causes of action arising after May 15, 2010. Required an affidavit of merit from a health care professional in order to proceed with an action, if they received a non-meritorious finding from the pre-litigation panel. Limited the liability of a health care provider, in certain circumstances, for the acts or omissions of an ostensible agent.

Unchallenged

Healthcare Liability: H.B. 2008/S.B. 1522 (2011)

Tennessee|2011

Healthcare Liability – Amends existing Tennessee medical liability laws to replace

Healthcare Liability – Amends existing Tennessee medical liability laws to replace the term “medical malpractice” with “health care liability action” and expands the definition of “health care provider,” to expressly include nursing homes, assisted living facilities, mental health centers, pharmacists and employees of these individuals and entities within the ambit of medical liability laws.

Unchallenged

Medical Liability Reform: H.B. 479 (2011)

Florida|2011

Requires an M.D., D.O., or D.D.S. licensed in another state

Requires an M.D., D.O., or D.D.S. licensed in another state to obtain an expert witness certificate before being able to provide expert testimony in Florida.

Gives the Boards of Medicine, Osteopathic Medicine, and Dentistry the specific authority to discipline any expert witness, both those licensed in state and those with an expert witness certificate, who provide deceptive or fraudulent expert witness testimony.

Requires the Board of Medicine and the Board of Osteopathic Medicine to create a standard informed consent form that sets forth the recognized risks related to cataract surgery. Provides that an incident resulting from a recognized specific risk is not considered an adverse incident.

Deletes the provision in current law that prohibits an insurance company from selling a malpractice insurance policy to a physician that gives the physician the authority to control settlement decisions.

Excludes from evidence in any medical negligence action any information regarding an insurer’s reimbursement policies or reimbursement determinations.

Provides that the breach of, or failure to comply with, any federal requirement is not admissible as evidence in a medical negligence case.

Provides that the expert witness who submits the pre-suit verified expert medical opinion is no longer immune from discipline.

Creates a new pre-suit form, the “authorization for release of protected health information.” This will make it easier for a physician to obtain the patient’s health care information in a malpractice suit.

Provides that volunteer team physicians are immune from suit when gratuitously rendering care at a school athletic event.

Unchallenged

Medical Liability Reform: A.B. 139 (2013)

Wisconsin|2013

Creates a clear reasonable standard for physicians when providing patients

Creates a clear reasonable standard for physicians when providing patients with information about the risks and benefits of reasonable alternate treatment. Directly addresses a Wisconsin Supreme Court (Jandre v. Wisconsin Injured Patients and Families Compensation Fund) by making it clear that a negligent diagnosis claim is separate from an informed consent claim.

Unchallenged

Medical Liability- Peer Review: H.B. 1007 (2013)

Oklahoma|2013

Clarifies that in medical peer review proceedings, peer review information

Clarifies that in medical peer review proceedings, peer review information shall be private, confidential, privileged and not subject to discovery. Also states that in any action brought against a health care facility involving possible negligence in hiring, or contract with, a health care professional, any information discovered pursuant to a claim of negligence against such health care facility shall not be admissible as evidence until a judge or jury has first found the health care professional to have been negligent in providing health care services to the patient I n such health acre facility.

Unchallenged

Affidavit of Merit: S.B. 1 (2013)

Oklahoma|2013

Sets forth than in any civil action for professional negligence,

Sets forth than in any civil action for professional negligence, the plaintiff shall attach to the petition an affidavit and sets forth what is required in the filing and what should be done without an affidavit attached.

Challenged and Struck Down

Wall v. Marouk, 302 P.3d 775 (Okla. 2013).

Medical Liability Reform: A.B. 120 (2014)

Wisconsin|2014

Provides that a statement or conduct of a health care

Provides that a statement or conduct of a health care provider that expresses apology to a patient or patient’s relative or representative is not admissible as evidence of liability or as an admission against interest.

Unchallenged

Medical Liability: S.B. 1905 (2014)

Oklahoma|2014

Provides that a health care provider’s failure to comply with

Provides that a health care provider’s failure to comply with or a health care provider’s breach of the federal Patient Protection and Affordable Care Act shall not be admissible, used to determine the standard of care, or the legal basis for a presumption of negligence in any medical liability action.

Unchallenged

Expert Evidence- Daubert Standard and Medical Liability: S.B. 311 (2014)

Kansas|2014

Incrementally raise the limit on noneconomic damages by $50,000 every

Incrementally raise the limit on noneconomic damages by $50,000 every four years until 2022. The current limit is $250,000, and under this legislation, for all causes of action accruing after July 1, 2022, the limit would be $350,000. This provision is in response to a 2012 Kansas Supreme Court opinion, which called for the state legislature to reexamine the limit and make the necessary monetary increases due to inflation and cost of living increases. The second piece of the bill would adopt the Daubert standard for expert testimony.

Unchallenged

Medical Liability: S.B. 6 (2015)

West Virginia|2015

Links the noneconomic damages limit to the Consumer Price Index,

Links the noneconomic damages limit to the Consumer Price Index, requires appellate courts to review the standards applied to admitting expert testimony de novo, and excludes amounts written off a medical bill by a thirty party from the definition of a “collateral source.”

Unchallenged

Medical Liability Reform: H.B. 270 (2016)

New Mexico|2016

Prohibits New Mexico courts from accepting lawsuits for care rendered

Prohibits New Mexico courts from accepting lawsuits for care rendered out-of-state, if the patient has consented to choice of law and jurisdiction. The legislation applies to out-of-state physicians, physician groups, health care providers, hospitals, outpatient facilities and their employees.

Unchallenged

Medical Liability Reform: Noneconomic Damages Reform: HB 2122 (2003): W.V. Code Ann. § 55-7B-8.

West Virginia|2003

Limits the award of noneconomic damages in medical malpractice cases

Limits the award of noneconomic damages in medical malpractice cases to $250,000 to $500,000 depending on the severity of the injuries.

Medical Liability Reform: Noneconomic Damages Reform: AB 36 (1995): Wisc. Stat. Ann. §§ 893.55, 895.04.

Wisconsin|1995

Limits the award of noneconomic damages in medical liability cases

Limits the award of noneconomic damages in medical liability cases to $350,000, indexed for inflation. The $350,000 limit on noneconomic damages awards in medical liability cases did not violate the right to jury trial, separation of powers, remedy for wrongs, equal protection, or due process provisions of the State constitution. Guzman v. St. Francis Hospital, Inc., 2000 WL 1848463 (Wis. App. Dec. 19, 2000).

Medical Liability Reform: Expert Witness: S.B. 699

Virginia

Requires the plaintiff, in medical liability cases, to provide certification of

Requires the plaintiff, in medical liability cases, to provide certification of expert witnesses. The plaintiff must disclose the identity and qualifications of the expert witness who certified that the defendant deviated from the applicable standard of care and the deviation was the proximate cause of the injuries claimed. The certification is required before the plaintiff can commence any action for medical liability.

Medical Liability Reform: Expert Witness Certification: H.B. 1545 (2013)

Virginia|2013

States that in an action for medical liability, the court, upon

States that in an action for medical liability, the court, upon showing good cause, may conduct an in camera review of the opinion obtained by the plaintiff of an expert witness who certified that the defendant deviated from the applicable standard of care and the deviation was the proximate cause of the injuries claimed.

Medical Liability Reform: Arbitration: H.B. 135 (2013)

Utah|2013

Provides that a party in a medical liability action or arbitration

Provides that a party in a medical liability action or arbitration may not attempt to allocate fault to any health care provider unless a certificate of compliance has been issued. Also, requires that evidence from a medical review panel remain unreportable to a health care facility or health insurance plan.

Medical Liability Reform: Noneconomic Damages Reform: HB 4 (2003).

Texas|2003

Limits the award of noneconomic damages in medical malpractice cases

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: Noneconomic Damages: S. 83 (2005).

South Carolina|2005

Limits noneconomic damages in medical liability cases to $350,000 per

Limits noneconomic damages in medical liability cases to $350,000 per provider, with an overall aggregate limit of $1.05 million.

Joint and Several Liability Reform: Medical Liability: S. 83 (2005).

South Carolina|2005

Specifies that if there are multiple defendants in a civil

Specifies that if there are multiple defendants in a civil action, joint and several liability does not apply to any defendant 50 percent or less responsible for the damages. Furthermore, specified that comparative fault is included in the calculation of total fault in the case. If the plaintiff is found to be greater than 50 percent responsible for the total fault, then the plaintiff is completely barred from recovering damages. A defendant found to be less than 50 percent responsible is only responsible for its proportional share of damages based on its percentage of liability. Retained the right of the “empty chair” defense where a defendant retains the right to assert that another potential tortfeasor, whether or not a party, contributed to the alleged damages and may be liable for any or all damages alleged by another party.

Medical Liability Evidence Reform: H.B. 7559 (2012)

Rhode Island|2012

Expands the type of medical services and expense affidavits that

Expands the type of medical services and expense affidavits that can be introduced into evidence without the provider being required to testify in court.

Medical Liability Reform: Benevolent Gestures: S.B. 379 (2013)

Pennsylvania|2013

Allows health care providers to make benevolent gestures prior to the

Allows health care providers to make benevolent gestures prior to the start of medical malpractice lawsuits, mediations, arbitrations or administrative actions and not have those statements or gestures of contrition used against them as long as such actions are not statements of negligence or fault.

Medical Liability Reform: Collateral Source Rule Reform: HB 1802 (2002): 40 Pa. Cons. Stat. Ann. § 1301.602.

Pennsylvania|2002

Prohibits a patient from suing for damages that were paid

Prohibits a patient from suing for damages that were paid by a health insurer.

Medical Liability Reform: Expert Evidence: S.B. 6 (2013)

Oklahoma|2013

Adopts the federal rules of evidence. Sets out that a qualified

Adopts the federal rules of evidence. Sets out that a qualified expert witness may testify on scientific, technical or other specialized knowledge if; (1) The testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has applied the principles and methods reliably to the facts of the case. Also sets out that facts or data that are otherwise inadmissible shall no tbe disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.

Medical Liability Reform: Noneconomic Damages: H.B. 2661 (2004).

Oklahoma|2004

Extends the sunset provision on the limit on noneconomic damages

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: SB 629 (2003): 63 O.S. § 1-1708.1F.

Oklahoma|2003

Limits the award of noneconomic damages to $350,000 in cases

Limits the award of noneconomic damages to $350,000 in cases involving pregnancy (labor, delivery, and post partum period) as well as emergency care.

Medical Liability Reform: Noneconomic Damages: SB 281 (2003); ORC Ann. 2323.43.

Ohio|2003

Limits the award of noneconomic damages in medical liability cases

Limits the award of noneconomic damages in medical liability cases to $350,000, with a provision to allow the cap to rise to $1 million, depending on the severity of the injuries and the number of plaintiffs involved in the suit.

Medical Liability Reform: Emergency Room Liability: AB 1 (2002).

Nevada|2002

Limits damages in medical liability cases against emergency room physicians

Limits damages in medical liability cases against emergency room physicians to $50,000.

Medical Liability Reform: Noneconomic Damages Reform: AB 1 (2002).

Nevada|2002

Limits noneconomic damages in medical liability cases to $350,000, except

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: Noneconomic Damages Reform:

New Hampshire

A New Hampshire law setting a $250,000 limit on noneconomic

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: Noneconomic Damages Reform: SB 33 (2011);N.C. Gen. Stat. § 90-21.19.

North Carolina|2011

Limits noneconomic damages in medical liability cases to $500,000 against

Limits noneconomic damages in medical liability cases to $500,000 against all defendants. The limit is subject to adjustments, every three years starting on January 1, 2014, based on the Consumer Price Index. The legislation does provide for an exception to the limit if: (1) the plaintiff suffered disfigurement, loss of use of part of the body, permanent injury or death; and (2) the defendant’s acts or failures, which are the proximate cause of the plaintiff’s injuries, were committed in reckless disregard of the rights of others, grossly negligent, fraudulent, intentional or with malice.

Medical Liability Reform: Noneconomic Damages Reform: HB 309 (1995): Mont. Code Ann. § 25‑9‑411.

Montana|1995

Limits the award of noneconomic damages in medical malpractice cases

Limits the award of noneconomic damages in medical malpractice cases to $250,000.

Medical Liability Reform: Noneconomic Damages Reform: H.B. 13 (special session) (2004); Amended Miss. Code Ann. § 11-1-60.

Mississippi|2004

Establishes a hard cap of $500,000 on noneconomic damages in

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: Noneconomic Damages Reform: H.B.2 (special session) (2002); Amended Miss. Code Ann. § 85-5-7.

Mississippi|2002

Limits noneconomic damages to $500,000 until July 1, 2011, $750,000

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: Joint and Several Liability Reform: H.B.2 (special session) (2002); Amended Miss. Code Ann. § 85-5-7.

Mississippi|2002

Replaces the rule of joint and several liability with the

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: H.B. 393 (2005).

Missouri|2005

Limits noneconomic damages in medical liability cases to a nonadjustable

Limits noneconomic damages in medical liability cases to a nonadjustable limit of $350,000 regardless of the number of defendants in the case.

Medical Liability Reform: Prejudgment Interest Reform: S.B. 1118 (2012)

Michigan|2012

Ensures that a full 91-day period is given to defendants

Ensures that a full 91-day period is given to defendants who submit an affidavit of meritorious defense and ends the practice of prejudgment interest being awarded on attorney fees and costs in medical liability cases.

Medical Liability Reform: Noneconomic Damages Reform: S.B. 1115 (2012)

Michigan|2012

Classifies the loss of household or other services, loss of

Classifies the loss of household or other services, loss of companionship and loss of consortium as noneconomic damages.

Medical Liability Reform: Noneconomic Damages: SB 270/H 2 (1993): Mich. Comp. Laws § 600.1483.

Michigan|1993

Limits the award of noneconomic damages in medical liability cases

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: Noneconomic Damages Reform: SB 475 (2005).

Illinois|2005

Limits noneconomic damages in medical liability cases to $500,000 per

Limits noneconomic damages in medical liability cases to $500,000 per physician and $1 million per hospital.

Medical Liability Reform/Noneconomic Damages Reform: S.B. 3 (2005).

Georgia|2005

Limits noneconomic damages to $350,000 per healthcare provider, with an

Limits noneconomic damages to $350,000 per healthcare provider, with an overall aggregate limit of $1.05 million.

Medical Liability Reform: Expert Evidence: H.B. 7015 (2013)

Florida|2013

Provides that a witness qualified as an expert by knowledge, skill,

Provides that a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion as to the facts at issue in a case under certain circumstances. It requires the state to interpret and apply the principles of expert testimony in conformity with the United States Supreme Court’s decision in the Daubert case.

Medical Liability Reform: Noneconomic Damages Reform: CS SB 2-D (special session 2003).

Florida|2003

Provides for emergency room practitioner limits on noneconomic damages of

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: Nursing Homes: Punitive Damages: SB 1202 (2001).

Florida|2001

Requires a plaintiff to prove punitive damages by clear and

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: Noneconomic Damages: CS/SB6 (1988): Fla. Stat. §§ 766.207, 766.209.

Florida|1988

Limits noneconomic damages in medical liability cases to $250,000 in

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: Noneconomic Damages Reform: HB 03-1007 (2003).

Colorado|2003

Limits noneconomic damages in medical malpractice cases to $300,000.

Limits noneconomic damages in medical malpractice cases to $300,000.

Medical Liability Reform: Punitive Damages: HB 1069 (1990).

Colorado|1990

Provides that punitive damages shall not be alleged in a

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: Noneconomic Damages Reform: SB 143 (1988): Colo. Rev. Stat. § 13-64-302.

Colorado|1988

Limits the total award of damages to $1,000,000, of which

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: Noneconomic Damages Reform: The Medical Injury Compensation Reform Act (MICRA): (1975): Cal. Civ. Code § 333.2.

California|1975

Limits noneconomic damages in medical liability cases to $250,000. The

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: Contingent Fee Reform: The Medical Injury Compensation Reform Act (MICRA): (1975): Cal. Bus. & Prof. Code § 6146(a).

California|1975

Limits contingent fees in medical liability cases to 40% of

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: Wrongful Death: (1987).

Alabama|1987

Limits damages in wrongful death actions to $1 million.

Limits damages in wrongful death actions to $1 million.

Medical Apology: H.B. 250 (2014).

Alaska|2014

Makes an expression of apology, responsibility, liability, sympathy, commiseration, compassion

Makes an expression of apology, responsibility, liability, sympathy, commiseration, compassion or benevolence by a health care provider inadmissible in a medical liability case. It also requires a health care provider to advise a patient to seek legal advice before making an agreement with the patient to correct an unanticipated outcome of medical treatment or care.

Medical Liability Reform/Noneconomic Damages Reform: S.B. 67 (2005).

Alaska|2005

Lowers the limit on noneconomic damages in medical liability cases

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.