Kaiser Daily Health Policy Report Examines Developments Related to Malpractice in Six States, USA

Main Category: Litigation / Medical Malpractice
Article Date: 09 Apr 2005 - 4:00 PDT

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Kaiser Daily Health Policy Report highlights recent developments related to medical malpractice in six states. Summaries appear below.

• Florida: Bills under consideration in the state House and Senate would require physicians to have malpractice insurance or provide evidence that they could pay damages of at least $750,000 through letters of credit from banks or the placement of funds in escrow accounts, the Miami Herald reports. State law currently requires physicians without malpractice insurance to have the ability to pay at least $250,000 in a single malpractice lawsuit or at least $750,000 in multiple lawsuits. However, state law does not require physicians to provide evidence that they have the funds. The Florida Academy of Trial Lawyers supports the bills (Dorschner [1], Miami Herald, 4/1). In related news, the University of Miami has partnered with six Florida teaching hospitals to lobby state lawmakers to cap damages in malpractice lawsuits against them at $150,000 in exchange for efforts to reduce medical errors. The teaching hospitals are Jackson Memorial, Shands hospitals in Gainesville and Jacksonville, Orlando Regional Medical Center, Tampa General and Mount Sinai Medical Center. Under the proposal, the teaching hospitals would assume all medical liability for physicians and hospitals and would receive sovereign immunity, which would cap damages in malpractice lawsuits against them at $150,000. Jackson, a public hospital, currently has sovereign immunity, but UM physicians who practice at the facility do not have immunity. The other teaching hospitals -- which are private, not-for-profit facilities -- do not have sovereign immunity, but physicians from the state universities of Florida and South Florida who practice at the hospitals do have immunity. The proposal would not apply to hospitals in which less than half the faculty comes from medical schools. The state Agency for Healthcare Administration would certify that hospitals have made efforts to reduce errors before they could receive sovereign immunity (Dorschner, [2] Miami Herald, 4/1).
  


• Maryland: The state House Judiciary Committee on March 25 voted to approve a malpractice bill, the Annapolis Capital reports. The bill, sponsored by state Del. Robert Zirkin (D), would require a court to appoint a neutral expert witness to help determine economic damages in malpractice lawsuits, although the state medical board could not hold the witness accountable. In addition, the legislation would require the state insurance commissioner to reject requested premium rate increases from health insurers with surpluses that exceed a certain level. The bill also would require patients to file malpractice lawsuits in the same county in which the alleged malpractice occurred and would not allow plaintiffs to use physician apologies as evidence in malpractice lawsuits. The bill would establish a task force to study other malpractice issues (Basen, Annapolis Capital, 3/29).
  


• Montana: Gov. Brian Schweitzer (R) last week signed into law four bills (HB 24), (HB 25), (HB 26) and (HB 64) addressing medical malpractice, the AP/Billings Gazette reports. The Montana Medical Association drafted three of the new laws and the other law was drafted by Montana hospitals. One measure states that physicians cannot be sued for apologizing or expressing sympathy, sorrow or condolence for the suffering or death of a patient, while another bill bars patients from bringing claims against doctors for medical mistakes made by someone that they were not directly supervising or working with, such as a pharmacist who dispenses the wrong medication. One of the bills establishes criteria for determining who can be qualified as an expert witness to testify about standards of medical care in a malpractice lawsuit, and another bill prohibits hospitals from being sued for the actions of independent contractors, such as doctors or other health care providers, who are not employed directly by the hospital. The state legislature is still considering five other malpractice-related bills (AP/Billings Gazette, 3/29).
  


• New Hampshire: The New Hampshire House of Representatives on Thursday passed a bill that would require medical malpractice lawsuits to be reviewed by an expert judge within 45 days of being filed, the Manchester Union Leader reports. Under the bill, which was approved by a 259 to 48 vote, malpractice cases would have to go to mediation within 45 days if the judge examining the case finds that a claim is justified. The state House also passed a bill that would prevent doctors' apologies from being used against them as evidence of liability in a medical malpractice case. According to the Union Leader, the state House rejected a bill (HB 530) that would have capped non-economic damages at $250,000 in medical malpractice cases. In addition, the state Senate is considering legislation (SB 196) that would create a three-person panel -- consisting of a physician, a lawyer and a judge -- to review malpractice claims (Fahey, Manchester Union Leader, 4/1).
  


• South Carolina: The state Legislature last week approved a bill that would cap noneconomic damages in malpractice lawsuits at $350,000, the AP/Charlotte Observer reports. The legislation also would increase the cap to $1 million in malpractice lawsuits that involve a physician, hospital and third health care provider. Will Folks, a spokesperson for Gov. Mark Sanford (R), said that the governor is "looking forward to getting this bill," adding, "The governor's strongly supportive of legislation that will make South Carolina more competitive, and this is an example" (AP/Charlotte Observer, 3/30).
  


• West Virginia: The state House on Wednesday voted 71-28 to approve a bill (HB 2011) that would protect physicians and other health care providers from malpractice lawsuits filed by patients who experience injuries as a result of medications or medical devices approved by FDA. Supporters of the legislation said that patients in such cases should file lawsuits against the manufacturers of the products, not health care providers. State House Judiciary Chair Jon Amores (D) said, "We're talking about appropriate use of the drug" or medical device. However, state Delegate Mark Hunt (D) said, "We're denying a class of people access to the court system," adding, "This is the most dangerous bill that I have ever seen come through this House that is one paragraph" (Searls, Charleston Gazette, 3/31).

"Reprinted with permission from kaisernetwork.org kaisernetwork.org. You can view the entire Kaiser Daily Health Policy Report, search the archives, or sign up for email delivery at http://www.kaisernetwork.org/dailyreports/healthpolicy. The Kaiser Daily Health Policy Report is published for kaisernetwork.org, a free service of The Henry J. Kaiser Family Foundation . © 2005 Advisory Board Company and Kaiser Family Foundation. All rights reserved.

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