Tell that to ObGyns, who, in 2012, paid an average of 12.4% of their gross income for liability insurance premiums in 2012, and nearly 60% of whom changed their practices based on the risk or fear of professional liability claims or litigation. And this despite the fact that 43.9% of claims were dropped or settled without any payment on behalf of the ObGyn.
Action at the state level
We need a federal solution, but since that isn’t within reach, we’re looking to the states for action. And there’s a lot of action in some states, including Connecticut, Florida, Georgia, Hawaii, Illinois, Iowa, Missouri, Oregon, Rhode Island, Tennessee, and Utah.
Advocates in these states are trying a number of different approaches, hoping that some type of meaningful reform will be signed into law. Here’s a sampling of what’s under way.
Connecticut
HB 6687, amend certificates of merit in medical liability actions. Status: April 1, 2013: Joint Committee on Judiciary hearing. The bill would eliminate the need for a detailed basis for the formation of an opinion and replace it with a lower threshold stating the appearance of one or more specific breaches of the prevailing professional standard of care.
In addition, HB 6687 would allow any expert who may testify in court to satisfy the certificate of merit requirement, but at trial the “expert,” in order to testify, needs to have the court determine him or her to be qualified to testify based on discovery and evidentiary issues that are decided at trial. This expert then could sign a certificate of merit but have the court determine that he or she is indeed not an expert for that case. HB 6687 delays the challenging of qualifications of an expert only after the completion of discovery, adding substantial time and cost to defending meritless suits. Finally, the bill allows for a second bite of the apple for cases that did not meet this watered down standard for certificate of merit and would eliminate the automatic dismissal of cases filed with inadequate certificates that did not meet the rules of the court.
SB 1154, amend Connecticut’s failure of suit statute to allow a plaintiff whose lawsuit was dismissed due to a failure to file a certificate of good faith as required by statute, to commence a new action.
HB 5229, limit noneconomic damages in medical liability cases to $250,000 for each health-care provider and institution per event, and $750,000 overall for each event.
HB 5270, establish peer-review panels in medical liability actions. The panels would consist of physicians, medical professionals, and individuals outside the medical profession who would review claims of alleged negligence and determine whether there is probable cause that the medical liability claims have been made in good faith prior to the action being referred to mandatory mediation.
SB 97, extend the statute of limitations in medical liability cases, allowing for an action to be brought no more than 10 years from the date of the act or omission that serves as the basis for the claim.
Florida
The Birth-Related Neurological Injury Compensation Association (NICA). NICA is a statutory organization that manages the compensation plan used to pay for the care of infants born with certain neurological injuries. This plan is available to eligible families statewide without litigation. By eliminating costly legal proceedings, and through professional management of its disbursements, NICA ensures that birth-injured infants receive the care they need while reducing the financial burden on medical providers and families. Defensive work continues on the NICA Board and trial bar.
HB 7015, expert witness. Status: March 28, 2013, the House Justice Appropriations Subcommittee reported favorably. This bill would adopt the Daubert standard for expert witness testimony. It provides that a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion as to the facts at issue in a case.
Georgia
HB 499, Provider Shield Act. Georgia is the first state to introduce legislation based on the American Medical Association’s model bill, “The Provider Shield Act,” which clarifies language in the Affordable Care Act by providing that a physician’s failure to comply with, or a breach of, any federal statute, regulation, program, guideline, or other provision shall not: (1) be admissible; (2) be used to determine the standard of care; or (3) be the legal basis for a presumption of negligence.
Status: Enacted May 6, 2013. The law prohibits the use of payer guidelines and quality criteria outlined in federal law as a legal basis for negligence or standard of care in determining medical liability. Physicians are concerned that without such protections, the medical profession could be exposed to charges of negligence that aren’t based on clinical standards or the patient’s unique medical needs. Implementation of any guideline by any public or private payor, or the establishment of any payment standard or reimbursement criteria under any federal laws or regulations related to health care, shall not be construed, without competent expert testimony establishing the appropriate standard of care, to establish a legal basis for negligence or the standard of care or duty of care owed by a health-care provider to a patient in any civil action for medical malpractice or product liability.