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"I'm Sorry" Comes to North Carolina
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Gov. Michael Easley
(D) of North Carolina
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Governor Michael Easley (D) signed legislation on August 2 that addresses two major liability issues. Under provisions of HB 669, statements made by a health care provider in apologizing for an adverse outcome in medical treatment, offering to undertake corrective or remedial treatment or actions, and gratuitous acts to assist affected persons will not be admissible to prove negligence. In addition, according to the terms of the legislation members of quality assurance and peer review committees are not subject to liability for damages in civil actions if they have acted without malice or fraud. The proceedings of these committees may not be subject to discovery or introduction into evidence in any civil action against a nursing home or provider of professional health care services.
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Wyoming Special Legislative Session a Smashing Success!
Showing they take the current medical liability reform crisis seriously, Wyoming legislators met in a special session in July and adopted a number of reforms that were signed by the governor. Most critical is a constitutional amendment on the November ballot that would permit the Wyoming legislature to enact caps on noneconomic damages in medical liability cases. Another major reform is an "I'm Sorry" provision permitting health care providers to express sympathy and compassion for unanticipated outcomes without having those statements used against them in a liability lawsuit. The Wyoming Chapter, along with the Wyoming Medical Society and other components of organized medicine, joined together to strongly advocate for these reform measures.
Wyoming Medical Liability Reforms
- Ballot initiative to amend state constitution to allow legislature to enact caps on noneconomic damages in medical liability lawsuits
- Loan program to assist physicians in purchasing tail coverage
- Increase in Medicaid reimbursement for obstetric services
- "I'm Sorry" law allowing providers to express sympathy and compassion and not have those statements used against them in a liability lawsuit
- Several studies on topics related to liability insurance, medical errors and patient compensation, self-insurance risk pools, state funded insurance programs, and tracking of health care provider workforce numbers
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Oregon Ballot Measure Approved
Backers of an Oregon ballot initiative were successful in gaining approval for the November election. Ballot Measure 35 will place a constitutional cap of $500,000 on payment of noneconomic damages in medical liability lawsuits. From 1987-1999, the state had a cap on noneconomic damages that was found unconstitutional by the Oregon Supreme Court in a ruling that the state legislature did not have the constitutional authority to enact this cap. Extensive campaign and advocacy activities are under way, with information and materials available at the Yes on 35 Web site.
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Gloves Come Off in Florida
The battle between physicians and trial attorneys over medical liability reform in Florida is ongoing, with sparring now turning to the November election. Four constitutional amendments have been approved by the Florida Supreme Court (one from physicians and three from trial attorneys). The physician initiative would restrict attorney contingency fees to 30 percent of the first $250,000 awarded in a medical liability lawsuit and 10 percent of all damages in excess of $250,000. Of the three trial attorneys' amendments, two are expected to go forward: (1) a medical doctor's license would be revoked after having committed three or more cases of medical malpractice; and (2) patients and their families are entitled to access all records when a patient is injured or dies due to a medical error, with the public also entitled to access records of patient injuries by health care providers and facilities.
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The Medical Liability Claimant's Compensation Amendment Ballot Summary:
Proposes to amend the state constitution to provide that an injured claimant who enters into a contingency fee agreement with an attorney in claim for medical liability is entitled to no less than 70 percent of the first $250,000 in all damages received by the claimant, and 90 percent of damages in excess of $250,000, exclusive of reasonable and customary costs and regardless of the number of defendants.
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Even with Reforms, West Virginia Physicians Face Liability Insurance Problems
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West Virginia
Gov. Bob Wise
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As part of medical liability reform enacted in 2003, the state created the West Virginia Physicians' Mutual Insurance Company in an effort to guarantee that qualified physicians have a dependable source of malpractice insurance. However, a group of surgeons in Charleston discovered the mutual would not insure them after they received notice their current insurer was not renewing their medical liability policy. While the state program claims the surgeons were denied coverage because they did not meet underwriting standards, Gov. Bob Wise (D) expressed his concern that the company's criteria may be too restrictive.
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Politics in Play in the Garden State
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Outgoing Gov.
James McGreevey
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In a surprise move on August 12, New Jersey Gov. James McGreevey (D) announced his resignation effective November 15 due to an extramarital affair. Republicans were upset that Governor McGreevey selected the November date for his resignation, since leaving office immediately (or at least before September 3) would require a special election to complete the remainder of his term ending January 2006. Under the New Jersey constitution, Senate President Richard Codey (D) will become acting governor as the state does not have a lieutenant governor. However, at press time there was considerable pressure from both Republicans and Democrats being put on McGreevey to leave office by September 3 so that an election could be scheduled. If a Republican candidate were successful in winning a special election, a slight ray of hope might shine on meaningful medical liability reform as the current Democratic hold on power in the state could be shaken up.
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Past Issues of ACS Cross Country:
October 2003
November 2003
December 2003
January 2004
February 2004
March 2004
April 2004
May 2004
June 2004
July 2004
August 2004
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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 |
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Revised August 27, 2004
Advocacy and Health Policy
This page and all contents are Copyright © 2003-2004
by the American College of Surgeons, Chicago, IL 60611-3211
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