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May 2006
Note: Questions relating to state legislative activity or any of the items noted in ACS Cross Country may be directed to Mindy Baker, State Affairs Associate, at mbaker@facs.org.
Idaho Physicians May Say "I’m Sorry"
Starting on July 1, 2006, Idaho’s physicians and other health care professionals will be able to offer verbal and/or written apologies without fear that the apology may be used against them in a medical liability lawsuit. A bill highlighting that provision passed the House 67-0-3 and less than a month later passed the Senate 33-1-1. Supporters argued that being able to offer sympathies and explanations may help curb the number of lawsuits being filed. The bill reads:
“In any civil action brought by or on behalf of a patient who experiences an unanticipated outcome of medical care, or in any arbitration proceeding related to, or in lieu of, such civil action, all statements and affirmations, whether in writing or oral, and all gestures or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence, including any accompanying explanation, made by a health care professional or an employee of a health care professional to a patient or family member or friend of a patient, which relate to the care provided to the patient, or which relate to the discomfort, pain, suffering, injury, or death of the patient as the result of the unanticipated outcome of medical care shall be inadmissible as evidence for any reason including, but not limited to, as an admission of liability or as evidence of an admission against interest.”
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Alcohol Exclusion Laws Continue to Move through Legislatures
Many states still allow insurance companies to deny payment of medical claims for injuries sustained while the injured party was intoxicated or under the influence of a controlled substance. At the start of 2006, seven states had already repealed their “Alcohol Exclusion Laws” (AEL) also known as “Uniform Accident and Sickness Policy Provision Law” (UPPL). While eight states did not have such statues, courts have ruled that because the law is silent on the issue, it is still permissible to deny claims. The 35 remaining states still had AEL/UPPL on their books.
So far in 2006, four states have seen laws to repeal their AEL/UPPL, and two other states that had no statutes have introduced legislation that would prohibit such denials.
Two states whose laws were silent on this issue--Colorado and Connecticut--have not only had legislation introduced this year, but Colorado’s HB 1106 was recently signed into law and Connecticut’s SB 425 is currently awaiting the Governor’s signature.
Each of Hawaii’s legislative chambers has introduced legislation to repeal their existing AEL (HB 2401 & SB 2364). SB 2364 has been swiftly moving through the legislature and as of April 25 was in conference committee having passed both chambers unanimously.
Although Illinois (SB 2453) and New York (HB 9910) introduced this legislation in 2006, both bills have failed to be assigned to committee. In 2005, Governor Patakie vetoed similar legislation. Wyoming’s HB 7 passed out of committee earlier this year but was defeated on the floor of the House.
AEL/UPPL Repealed Already
- Iowa, Maryland, Nevada, North Carolina, Rhode Island, Vermont, and Washington State
Never Enacted AEL/UPPL
- Colorado, Connecticut, Massachusetts, Michigan, New Mexico, New Hampshire, Utah, and Wisconsin
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Liability Reforms Gain in Florida
Florida
has seen several important liability reforms this year—HB 145, which deals with joint and several liability, and SB 2686, which deals with expert witnesses.
Governor Bush signed HB 145, a bill that according to a House Staff report, would “repeal the last vestiges of joint and several liability in apportioning economic damages in negligence cases in favor of a comparative fault approach. As a result, one’s degree of liability would be limited to one’s degree of fault…This would complete a trend begun by the Legislature in 1986 and continued in further reforms in 1999.”
In a split 4-4 vote, the Senate Judiciary failed to pass SB 2686, which would have required out-of-state physicians who are providing expert testimony in malpractice cases to obtain a certificate from the Florida Board of Medicine. The bill also provided for a disciplinary process should an out-of-state doctor give inappropriate testimony during a medical malpractice case.
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Florida's Medical Liability Laws at a Glance
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Damage Caps:
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$500,000 cap -- increases to $1 million in non-economic damages in certain circumstances
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Collateral Source Reform:
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The court must reduce damages by the amounts paid to the claimant from collateral sources
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Attorney Fees Limited:
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Fees are limited to 30 percent of the first $250,000 in damages and to 10 percent of damages greater than $250,000*
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Periodic Payments Permitted:
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For future economic awards exceeding $250,000, the court must order periodic payments at the request of any party unless the court determines that manifest injustice would result to any party
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I’m Sorry Provision:
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Has a broader law protecting “Admissibility of Sympathetic Gestures Related to an Accident”
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*Currently the Florida Supreme Court is hearing a case to allow plaintiffs to waive their rights and allow attorney’s more than what the current statue allows. For more information read: "Florida Supreme Court May Allow Plaintiffs to Waive Their Rights to Full Awards"
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Kentucky Legislature Adjourns without Passing Caps
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Senator
David Williams (R)
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Kentucky’s legislature adjourned on April 12 without passing SB 1, a bill to place on the ballot a constitutional amendment that would allow legislators to legislate a cap no lower than $250,000 on noneconomic damages. It would also require that claims of malpractice be heard in “a system of alternative dispute resolution.”
On March 1, the bill failed to pass the Senate (21-15-2), two votes shy of the 60 percent majority needed to approve amendments to the Kentucky Constitution. In an attempt to save the legislation, the bill’s sponsor, Senate President David Williams (R), moved that the bill be placed on the clerk’s desk for consideration for another time. Senator Williams was hoping that Senators could be persuaded to pass the bill before the April adjournment; unfortunately the move was unsuccessful as the Senate adjourned without rehearing the bill.
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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, 2006
Advocacy and Health Policy
This page and all contents are Copyright © 2003-2006
by the American College of Surgeons, Chicago, IL 60611-3211
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