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"March Madness" For Medical Liability Reform Takes Place in Missouri and South Carolina
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Missouri
Gov. Matt Blunt (R)
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College basketball fans enjoy an annual "March Madness" with plenty of action and excitement during the NCAA tournament. Fans of medical liability reform in both Missouri and South Carolina had their own "March Madness" this year, with bills passing in both legislatures. On March 16, the Missouri Legislature gave final approval for comprehensive medical liability reform in House Bill 393. For the past three years, the Missouri Legislature has passed medical liability reform legislation, only to see it vetoed by the former governor, Bob Holden (D). The current governor, Matt Blunt (R) is expected to sign the bill.
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South Carolina
Gov. Mark Sanford (R)
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The following day, March 17, South Carolina's legislature also passed medical liability reform. Citing Georgia's recent passage of liability reform in February, South Carolina Governor Mark Sanford (R) argued for the legislation and is expected to sign the bill.
The ACS Chapters in both states were active in their advocacy efforts on behalf of this legislation, utilizing the Surgery State Legislative Action Center to contact their state legislators. Years of hard work in both states came to fruition, proving once again the importance of consistent, long-term advocacy strategies in producing successful legislative outcomes.
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South Carolina's Senate Bill 83
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Missouri's House Bill 393
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- Caps Noneconomic Damages at $350,000
- Imposes Expert Witness Qualifications
- Implements Mandatory Mediation
- Allows Parties to Participate in Binding Arbitration
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- Caps Noneconomic Damages at $350,000
- Limits Venue Shopping
- Permits Joint and Several Liability when Defendant Is More Than 51 percent at Fault
- Strengthens Affidavit of Merit Requirement – Qualifications for Physician Expert
- Makes Benevolent Gestures Inadmissible in Court (the "I'm Sorry" Provision)
- Modifies the Collateral Source Rule
- Creates Civil Immunity for Physicians Who Volunteer Services at a Free Health Center
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New Mexico's Optometric Surgery Bill Fails
On March 19, New Mexico's Legislature adjourned for the session. Any bills that were not passed by that time were considered failed. One such bill, House Bill 199, would have allowed optometrists to perform some surgical procedures using lasers and scalpels, and to prescribe Schedule III-V controlled substances. (See side box for more information on HB 199)
After passing the House, the New Mexico Chapter of the American College of Surgeons sent out an action alert using the College's Surgery State Legislative Action Center urging members to contact their Senator and expressing disapproval for this legislation. Understanding the important patient safety concerns this bill created, the Senate committee declined to hear the legislation and no action was taken, killing the bill for this year.
HB 199 would permit optometrists to perform such procedures as laser trabeculoplasty, laser posterior capsulotomy, laser iridoplasty, and photorefractive and phototherapeutic keratectomy. "Minor" surgical procedures and injections as defined in this legislation could have been done for the "correction, relief, treatment or referral of visual defects or abnormal conditions of the human eye and its adnexa, including removal of superficial lesions on the eyelid and conjunctiva, subcutaneous and subconjunctival anesthetic injections and intralesional steroid injections of chalazions and injection to treat anaphylactic reaction."
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The Board of Optometry would have been charged with certifying optometrist to do these procedures, and was not required to have any input from or involvement with the Medical Board.
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Ohio Frivolous Lawsuit Committee Scores Major Victory
Physicians in Ohio were pleased with a recent court ruling when a judge sanctioned a trial attorney for filing a frivolous lawsuit. The judge also ordered the trial attorney to pay $6,000 to the physician as reimbursement for legal expenses incurred as a result of the lawsuit.
Created in 2004, the Ohio State Medical Association Frivolous Lawsuit Committee has received over 111 potential cases of frivolous lawsuit abuse. In this particular case, the judge found the trial attorney willfully violated a state court rule that bars baseless court filings. Specifically, he found that the trial attorney's own physician expert witness did not offer any statement or opinion that the physician's treatment of the patient failed to meet the prevailing standard of medical care. In addition, the judge noted that when the physician's attorney asked the trial attorney to drop the physician from the suit because of the lack of evidence, the trial attorney "advised not in terms of evidence, but rather in terms of the lack of an offer of money which would be the basis of the physician's release from litigation."
Further, the judge noted that "such a response is clearly frivolous under (Ohio law) as is the retention of the physician in this case."
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Trauma Funding Legislation Moves in Several States
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The critical need to increase funding for trauma services has resulted in several state legislatures considering legislation during their current sessions. California, Florida, and Texas have all introduced bills aimed at increasing funding of trauma centers through a variety of funding mechanisms.
Texas House Bill (HB) 124 would increase the excise tax on cigarettes in order to pay for health care services, including trauma care. The legislation states that, "$5 per 1,000 cigarettes of the tax received for cigarettes... shall be deposited to the credit of the trauma care account... to provide emergency medical services and trauma care". The bill is currently in committee, and no hearing date has been set.
Florida's Senate Bill (SB) 2252 and California's SB 57 both aim to increase trauma funding by increasing fines on traffic violations. On March 16, Florida's SB 2252 was sent to committee. This bill would include a civil fee of $65 for running a red light, 40 percent of which would go to the Department of Health for verified trauma centers with funding distribution based on trauma caseload volume. Florida has several other bills that are similar to SB 2252, including HB 497 and SB 258.
Meanwhile, on April 19, California's SB 57 is set for a hearing. This bill would allow a county board of supervisors to levy an extra $2 penalty for every $10 in penalties incurred for violations in seatbelt use, speed limits, driving under the influence, and domestic abuse. Up to 15 percent of the funds collected could be used to equip and reimburse trauma centers that provide pediatric trauma care. For further information, contact Mindy Baker (mbaker@facs.org).
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Senate Partisanship Dooms Illinois Medical Liability Reform
In a display of partisan political power, the President of the Illinois Senate, Emil Jones (D), moved a physician-supported medical liability reform bill from the Senate Judiciary Committee to the Senate Executive Committee when it appeared some democratic senators on the Judiciary Committee would vote for the legislation. These senators, from downstate areas of Illinois where there has been an exodus of specialists due to the medical liability crisis, understood the importance of supporting this legislation to keep doctors in their area of the state.
Now that the bill, SB 150, is in the Senate Executive Committee, it is unlikely to receive any further consideration during the 2005 legislative session. Reforms contained in this legislation were comprehensive in nature and included a cap on noneconomic damages of $250,000. In an editorial titled "Dr. Jones buries the patient," the March 23, 2005, Chicago Tribune had this to say about the situation:
"So the Democrats have buried a comprehensive answer to the health crisis. What are they going to do now? They need to work closely with Republicans on a genuine answer to the crisis – not an answer that appeases the trial lawyers who get rich off of malpractice cases.
Real reform will tighten the criteria for filing malpractice suits. Real reform will raise the standards for screening of expert witnesses. Real reform will protect doctors' personal assets above their insurance limits, so they will stay here to practice. Real reform will put a cap on non-economic damages, so insurers can have some certainty about the cost of business in Illinois. Real reform will create an environment where the victims of malpractice can still get just compensation for their injuries, but doctors won't have to live in fear of doing their jobs.
What's your prescription, Dr. Jones?"
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ACS State Affairs
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Division of Advocacy and Health Policy
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Jon H. Sutton
Manager, State Affairs
Chicago Headquarters
312-202-5358
jsutton@facs.org |
Mindy Baker
State Affairs Associate
Chicago Headquarters
312-202-5363
mbaker@facs.org |
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Revised March 31, 2005
Advocacy and Health Policy
This page and all contents are Copyright © 2003-2005
by the American College of Surgeons, Chicago, IL 60611-3211
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