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November 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.
Florida’s Supreme Court Rules on Attorneys’ Waivers
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In 2004, Florida voters passed a constitutional amendment (Amendment Three) limiting attorneys’ contingency fees in medical liability cases to 30 percent of the first $250,000 in damages and to10 percent of damages greater than $250,000. However, that restriction didn’t stop trial lawyers from collecting more than their constitutionally allowed fee. Many trial lawyers began asking their clients to sign waivers allowing them to collect more then the percentage allowed by Amendment Three.
Supporters of the amendment took their case to Florida’s Supreme Court, and in November 2005 the court heard oral arguments. Unfortunately in late September of this year, the court formally ruled that plaintiffs may waive their right to the full amount of damages.
In response to that ruling, the Florida Medical Association (FMA) has created a “Patient Waiver” that directly mirrors the waivers the trial attorneys are using and that physicians may use with their patients. According to the FMA, “The Florida patient waiver mimics the California MICRA solution that limits legal recourse for noneconomic damages to $250,000, but places no limit on the amount of economic damages that could be awarded to the patient. The waiver will help provide Floridians with continued access to quality health care from the physicians of their choice.”
Physicians who are members of the FMA and their local county medical society may obtain a patient waiver form from the FMA by emailing legal@medone.org.
To read more on this topic, read the t February 2006 issue of ACS Cross Country at http://www.facs.org/ahp/feb06crosscountry.html#1. To read the Florida Medical Association’s press release, visit: http://www.fmaonline.org/pubs/patientwaiver.pdf.
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California Dental Surgeons Successfully Expand Their Scope
Despite the fact that more than 180 surgeons used the Surgery State Legislative Action Center to send letters to California Governor Schwarzenegger (R) urging him to veto SB 438, which allows dental surgeons without a medical degree (MD/DO) to perform elective cosmetic surgical procedures, the Governor recently signed the bill into law.
Last year the Governor vetoed similar legislation, and commissioned an “occupational analysis” in order to evaluate the training and education of non-physician oral surgeons. The report found that non-physician dental surgeons “have sufficient education, training, and experience to perform elective cosmetic procedures.”
According to the American Society of Plastic Surgeons, “the fundamental flaw in the Hertz occupational analysis is that the study relies exclusively on the input of dental surgeons to formulate conclusions and findings.”
The Coalition for Safe Plastic Surgery (of which American College of Surgeons is a member) has identified several other potential problems with SB 438, as follows:
- The bill does not require non-physician dental surgeons to identify themselves to patients as licensed dentists. Patients will be confused and misled when these individuals identify themselves only as “cosmetic surgeons,” and patients will be unaware of their lack of core surgical and medical training.
- It will allow non-physician dental surgeons to practice medicine (cosmetic surgery) and yet, they will continue to be regulated by the Dental Board instead of the Medical Board. The Dental Board of California will be responsible for investigating complaints of gross negligence against dentists performing facelifts. The Dental Board does not have the expertise to perform such investigations.
To learn more about this issue, visit: http://www.safeplasticsurgery.org/
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Michigan Peer Review Case Decision Marks Victory for Physicians
- Reprinted with permission from Michigan State Medical Society, Medigram, Aug. 20 2006, Vol 22, No.16.
The Michigan Supreme Court recently decided in the case of Feyz v Mercy Memorial Hospital, et al, that physicians may pursue claims against hospitals that wrongly take adverse action against their medical staff privileges. In addition, the Court decided that individuals serving on hospital peer review committees will do so knowing they are immune from lawsuits as long as the committee acts based only on information it knows or has a reasonable belief is truthful.
This case is a victory for physicians because the threat of pursuing a lawsuit against the hospital puts physicians in a much stronger position when they are internally appealing adverse medical staff privilege decisions. As a result, hospitals now need to be very careful to ensure that they provide due process to physicians and that they follow all applicable rules and procedures when taking action that is adverse to a physician’s medical staff privileges.
In this case, a peer review committee of Mercy Memorial Hospital placed a physician on probation. The physician sued the hospital, its medical staff and the physician members of the peer review committee, asserting a violation of his civil rights and other claims based on invasion of privacy, breach of fiduciary and public duties, and breach of contract.
MSMS [Michigan State Medical Society] filed an amicus brief on April 12 on behalf of the plaintiff physician.
For more information contact MSMS Executive Director Kevin Kelly at 517-336-5742 or kkelly@msms.org.
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New Mexico Studies Plans for Universal Health Care Coverage
As part of his five-point plan to ensure that every child age five and under has access to health care coverage, New Mexico Gov. Bill Richardson (D) created the “Coverage for New Mexicans Committee.”
According to the Governor’s office, this committee will “analyze health coverage models and make recommendations on across-the-board coverage solutions for New Mexicans... have broad membership from the health care industry, insurance and advocacy communities... (and) deliver its findings to the Governor in a year, in time to work with the legislature on a comprehensive health coverage package for the 2008 session.”
According to The New Mexican, the committee has narrowed its focus to three plans:
- The Health Security Act, a statewide health care plan, under which all residents who have lived in New Mexico for a year or more would have benefits mirroring those of state employees.
- The New Mexico Health Choices, which would strive to give people a range of private and government options to make health insurance affordable. This model is based on government-subsidized vouchers.
- The Build on the Existing System, a smorgasbord of universal-coverage ideas from various states tailored to New Mexico, plus an expansion of Medicaid and incentives for employers to provide health insurance for workers.
(Diana Heil, The New Mexican, Oct. 24, 2006, http://www.freenewmexican.com/news/51096.html)
Gov. Bill Richardson’s five-point plan:
- Phase in a requirement that companies that do business with the state must offer health insurance benefits to their New Mexico employees. The General Services Department will lead a small group of cabinet secretaries to develop a plan that will institute this requirement by fiscal year 2008. This group will be sensitive to the needs of small vendors.
- The General Services Department will pinpoint the number of state employees who decline health coverage. Currently, if an employee declines enrollment, the state does not check to see if they have coverage through a spouse or another entity. This full accounting will help get an accurate picture of the coverage gaps and target outreach to get as many state employees covered as possible.
- Maximize the Medicaid program. For fiscal year 2008, Governor Richardson will seek funding to increase coverage for adults via a two-year, phased-in approach. This initiative will be specifically designed to help low income adults up to 100% of the federal poverty level. It will leverage millions of dollars in additional federal funding and help cover tens of thousands of New Mexicans.
- Funding to expand the State Coverage Insurance program to help cover more working adults and asking the federal government to raise the federal poverty requirement to 300% with cost-sharing based on income. Expanding this public/private partnership with small employers will help cover the many hardworking New Mexicans who currently cannot afford insurance.
- Governor Richardson and the legislative leadership have appointed a 21-member task force to analyze health coverage models and make recommendations on across-the-board coverage solutions for New Mexicans. This Coverage for New Mexicans Committee will have broad membership from the health care industry, insurance and advocacy communities. This committee will deliver its findings to the Governor in a year, in time to work with the legislature on a comprehensive health coverage package for the 2008 session.
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Advocacy Resources Added to College Web Portal and Web Site
The state legislation page on the College’s Web portal and its Web site was recently “upgraded” with the inclusion of a number of advocacy resources. In addition to providing access to state legislative priorities, to the Surgery State Legislative Action Center, and to ACS Cross Country, this Web page now contains an extensive section on state advocacy resources – including an advocacy handbook and a listing of Web-based advocacy resources.
To access the handbook or resources, visit the State Legislation page at http://efacs.org/portal/page/portal/ACS_Content/Advocacy/StateLegislation on the Web portal and http://www.facs.org/ahp/statelegislation.html on the Web site, and scroll to the bottom of the page.
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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 November 1, 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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