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Montana Governor Signs Several Medical Liability Reform Bills
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Montana Gov.
Brian Schweitzer
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Gov. Brian Schweitzer (D) signed several medical liability reform bills on March 24 aimed at adding more protections for Montana's medical professionals. These bills included such reforms as: an "I'm sorry" provision that excludes apologies from being admissible for any purpose in a civil action for medical malpractice; and the enactment of several expert witness qualifications. These new standards require that an expert witness must be a licensed physician and must be in the same or similar specialty as the defendant. Expert witnesses must also have been in practice within the past five years, which can include academic or clinical research programs.
Montana law already includes several major liability reforms including a $250,000 cap on noneconomic damages. For more on Montana's existing liability reform laws see chart below.
Montana's Medical Liability Laws at a Glance
| Damage Caps: |
Yes, $250,000 |
| Joint Liability Reform: |
Several liability applied when negligence is 50% or less of the combined negligence of all |
| Collateral Source Reform: |
Yes, in cases where damages exceed $50,000 |
| Attorney Fees Limited: |
No |
| Periodic Payments Permitted: |
Yes, for future damages exceeding $50,000 |
| I'm Sorry Provision: |
Yes |
| Expert Witness Qualifications: |
Yes |
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Liability Reform Passed in Arizona
Arizona's Governor Janet Napolitano (D) signed SB 1036 into law on April 25th. This legislation contained several reforms including both an "I'm Sorry" provision and expert witness qualifications.
Provisions in the bill require expert witnesses to be currently practicing or teaching in the same specialty or area of medicine as the physician on trial. The legislation also stipulates that a witness shall not be permitted to testify if the witness's fee is in any way contingent on the outcome of the case. The bill allows a judge to disqualify a witness if he or she fails to meet the criteria.
Another important reform provision of the bill would disallow expressions of sympathy, condolence, and so on, to be used against a physician in a medical malpractice suit.
Arizona does not currently have a damage cap because of constitutional restrictions. However, SCR 1035, which would give the legislature the authority needed to enact caps, may be brought to the state as a ballot question in November 2006.
For the full text of SB 1036, click here.
Arizona's Medical Liability Laws at a Glance
| Damage Caps: |
No |
| Joint Liability Reform: |
Yes |
| Collateral Source Reform: |
Yes, discretionary. |
| Attorney Fees Limited: |
No, but at the request of any party the court shall review the reasonableness of each party's attorney's fees. |
| Periodic Payments Permitted: |
Yes, HOWEVER, the law was struck down as unconstitutional. |
| I'm Sorry Provision: |
Yes |
| Expert Witness Qualifications: |
Yes |
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ACS Participates in National Coalition to Combat Physician Taxes
At least half a dozen states have seen legislation to assess physician taxes on elective cosmetic surgical procedures introduced in their legislatures this year. The American College of Surgeons has joined together with other medical specialty groups, industry allies, and state medical societies to monitor and combat these taxes. (See below for a list of some of the members of the coalition.)
The American Society of Plastic Surgeons has posted alerts on the Surgery State Legislative Action Center (SSLAC), which it shares with the College and many national surgical specialty societies. The College sent alerts to Fellows in the affected states, resulting in hundreds of surgeons contacting their elected officials through the SSLAC. This type of grassroots advocacy and the efforts of coalition members have resulted in the defeat of all of these bills so far this year.
A common example of these taxes is HB 2249 in Illinois. This bill would impose a 6 percent tax on "cosmetic surgery" and "cosmetic medical procedures" as defined in the legislation as "any procedure that is directed at improving the patient's appearance and does not meaningfully promote the proper function of the body or prevent or treat illness or disease." As is the case with most versions of this legislation, an operation or procedure is considered medically necessary when both the physician performing the procedure and the patient's health insurance provider believe it to be so.
Allergan, Inc.; American Academy of Dermatology; American Academy of Facial Plastic and Reconstructive Surgery; American Academy of Ophthalmology; American Academy of Otolaryngology-Head and Neck Surgery; American College of Surgeons; American Medical Association; American Society for Aesthetic Plastic Surgery; American Society for Dermatologic Surgery; American Society of Plastic Surgeons; Medicis Aesthetics; Mentor Corporation
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California Bill Would Allow Single-Degree Oral Surgeons to Perform Cosmetic Surgery
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Legislation to permit single-degree (DDS) oral surgeons to perform cosmetic surgery of the head and neck was reintroduced in the California Assembly. AB 438 mimics legislation passed last year but was vetoed by the governor. For the purposes of this bill, elective cosmetic surgery is "any procedure defined as cosmetic surgery... and excludes any procedure that constitutes reconstructive surgery" including, but not limited to rhinoplasty and otoplasty.
The Coalition for Safe Plastic Surgery, composed of the American College of Surgeons, the American Society of Plastic Surgeons, and other surgical organizations, is working to defeat AB 438. The bill was expected to be voted out of committee on April 25, and coalition advocates will focus their efforts on defeating the bill in the Assembly.
To learn more about this issue, visit http://www.safeplasticsurgery.org/ or contact Mindy Baker, ACS State Affairs Associate, mbaker@facs.org.
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Washington State
Gov. Christine Gregoire
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Specialty Hospital Moratorium Enacted in Washington State
Newly elected Gov. Christine Gregoire (D) accepted the recommendation of the Washington State legislature and signed into law Senate Bill 5178. This legislation imposes a state moratorium on the licensing of any physician-owned specialty hospitals until the federal Medicare Payment Advisory Commission and Department of Health and Human Services' (DHHS) studies are available to enable the legislature to determine the appropriate regulation of these facilities. The state's moratorium expires on July 1, 2006.
A specialty hospital is defined as a subclass of hospital that is primarily or exclusively engaged in the care and treatment of patients with a cardiac or orthopaedic condition. In addition, care and treatment with a surgical procedure or any other specialized category of services designated by the Secretary of DHHS falls within the definition of specialty hospital.
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National Medical Liability Reform Rally Draws Large Crowd
On April 20, hundreds of surgeons and other physicians from nine northeast and mid-Atlantic states attended a rally for medical liability reform on the steps of the U.S. Capitol. Many of the participants arrived in a caravan of buses, wearing their white coats and carrying banners and posters advocating for liability reform. New Jersey, New York, and Pennsylvania were well represented, with many surgeons from these states making the trek to Washington, DC.
The Coalition for Accessible Physicians (CAP) sponsored the event with the support of the American College of Surgeons, American Medical Association, and other national and state medical organizations. Several members of Congress who strongly support medical liability reform legislation, including Sen. Rick Santorum (R-PA) and Reps. Chris Cox (R-CA) and Mike Ferguson (R-NJ), addressed the physicians in attendance. For more information, go to http://www.nationaldoctorsday.org.
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Past Issues of ACS Cross Country:
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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 May 4, 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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