State Law Summaries: Medical Malpractice and Reform

The applicable statute of limitations in different lawsuits is governed by state laws. The federal may impose general rules but it is the individual states that make the more specific provisions. Many states have passed legislation imposing caps to limit the monetary damages that can be obtained or the amount recoverable in malpractice suits, but the courts in some of these states have declared the laws unconstitutional.

Wrongful death caused by malpractice would be penalized and fined according to the different laws of each state. Virtually all states allow longer limitations periods for disability, incompetency, minority, foreign objects left in the body, or fraudulent concealment preventing earlier discovery. Because of the tort reform, statements by medical professionals are already inadmissible if they are showing sympathy, apologies or concern. This is because this will  be evidence of malpractice and fault.

ALASKA. In 2005, the Governor signed the limit of noneconomic damages and pegged it at $250,000. Noneconomic damages for wrongful death or injury over 70% disabling in severe permanent impairment are limited to $400,000. If the injury is sustained because of deliberate actions, the damages cap does not apply and the compensation of the aggrieved party will be as it is.

ARIZONA. In 2005, the Governor signed SB 1036. This law made some changes to expert witness qualifications specific to malpractice actions. If the health care providers made apologies and similar gestures, these will not be deemed admission of liability.

ARKANSAS. In the year 2005, SB 233 was signed by the Governor in 2005. It created an insurance policy holder’s bill of rights, and amends standards and criteria for medical liability insurance rates, rate administration, rate criteria. Specific information required by the Insurance Commissioner should be filed to make the medical liability information available to the public.

CALIFORNIA. Malpractice settlements and judgments that go beyond $30,000 should be reported to appropriate licensing board in accordance with SB 231, signed by the Governor in 2005. This is especially true if medical professional does not have liability insurance. Also, must report to Medical Board of indictment, felony conviction, or plea of guilty or no contest of felony or misdemeanor related to medical profession. An independent commission will be tasked to study physicians’ peer review process. Patients may now access Internet information about physicians relating to status of medical license, current accusations, judgments or arbitration awards, disciplinary action resulting in revocation of privileges, subject to discipline in different state, some specified information may be removed from internet after 10 years. Finally, each complaint filed with Medical Board will be jointly referred to Attorney General and Health Quality Enforcement Section.

CONNECTICUT. SB 1052, signed by the Governor in 2005 now requires a “certificate of good faith” to be filed with medical malpractice lawsuits. There are also guidelines on how to make an offer of compromise and the reduced associated interests. Medical liability insurers are to file specified reports to Insurance Commissioner, which are available to public. Medical liability insurers are required to file rate increase request with Insurance Commissioner if over 5%, and insureds may request public hearing. Today, the public and the patients are already given access to physician profiles, including adverse licensure actions in other states. Medical liability insurers are to report any claims paid to Insurance Commissioner, available to public through malpractice database. Expressions of sympathy and apologies by health care providers are inadmissible in court as admission of liability.

DELAWARE. In the year 2005, the governors signed HB 75. This law created the Board of Medical Practice guidelines, including disciplinary regulation and proceedings. The Board is to receive required reports from both physicians and liability insurance providers of any malpractice judgments, settlements or awards. If the medical personnel rendered service without compensation during emergency, he cannot be held liable for civil damages. Another law signed by the Governor in they year 2005 was HB 133. This law stated that all medical negligence claims settled or awarded against health care providers are to be reported to Commissioner by defendant and associated insurance provider in the span of 60 days after the  final disposition of claim.

FLORIDA. The implementation of “Patients’ Right to Know” was brought by S 938 which was signed by the Governor in 2005. This law has made constitutional amendment (from the 2004 General Election) Creates a right of access to records relating to adverse medical incidents. Disclosure of identity of patients is prohibited, other privacy restrictions. Another law that was signed was called S 940. In the year 2005, this law has implemented constitutional amendment requiring that doctors lose medical license in Florida if found guilty of medical malpractice 3 or more times in 5 years (also adopted from the 2004 General Election). This law has given the Department of Health the authority to penalize medical professionals who commit medical malpractice.

GEORGIA. By the year 2005, affidavits in medical malpractice complaints are required in accordance with SB 3. The affidavit ensures better defendant access to applicable patient health information. Physicians’ apologies are not admitted in court as admission of liability. There are changes to expert witness qualifications. Judgments and settlements which go beyond $30,000 should be reported by the malpractice insurers. If there are two guilty verdicts, report any further judgments to Medical Board; three guilty verdicts in 10 years can have license revoked or required additional education. Unless gross negligence is proven, there is limited liability for the medical professionals. There is a revision of joint/several liability. Now a $350,000 noneconomic damage limit; aggregate limit of $1.05 million.

ILLINOIS. In the year 2005, SB 475 was signed by the Governor of Illinois. This law limits noneconomic damages to $500,000 against an individual; $1 million against hospital. New expert witness standards, and there must be certificates of merit to meet same standards. Apologies by doctors and hospitals not permissible in court as admission of liability. There are public hearings for insurance rate change of more than 6% or at request of insureds. The internet will be utilized for disclosure of medical data. There are changes to the Medical Disciplinary Board, including an increase of disciplinary fines and extension of statute of limitations for complaints. Aside from these reforms, SB 475 also created the “Patient’s Right to Know.” Another bill called SJR 3 was also enacted by the state legislation. These are petitions for the state Supreme Court to provide for specific medical malpractice recordkeeping, case designation, and reporting.

INDIANA. In the year 2005, the Governor of Indiana signed SB 54. This law provides that licensed medical practitioners are immune from civil liability when voluntarily providing health care services without compensation at free medical clinics or health care facilities.

IOWA. The adoption of HB 50 established an interim committee to provide regulatory agencies and legislature with alternatives for alleviating problems with availability and affordability of medical liability insurance.

KANSAS. In the year 2005, the Governor signed SB 100. It provides that risk management programs may be created in assisted living facilities and in nursing. The specified requirements include the reporting of incidents. After the reporting of the incidents, it is referred for investigation but are not admissible in civil lawsuit action without court determination that reports are relevant to allegations.

LOUISIANA. In the year 2005, the Governor signed the SB 184. This law provides that medical information gathered by medical or insurance facility to identify cause of adverse outcome are not admissible as court evidence. Whenever the medical personnel expresses sympathy, these are not admissible in court. HB 425, also signed in 2005, specifies that statutory civil liability immunity in commitment in mental health or substance abuse cases is expanded to include hospitals and hospital personnel. A general civil immunity is granted for good faith services. However, medical professionals guilty of misconduct and negligence will not be entitled to the claim of negligence. HB 485, also signed, provides that specified information gathered by medical liability insurers or state risk management program for the purpose of reducing medical liability claims is to remain confidential.

MAINE. When LD 385 was enacted, it limited liability for ambulance services. LD 1378 provides that expression of apology or sympathy by a medical practitioner is not admissible as admission of liability. According to LD 1472,  any physician or hospital without liability insurance is considered self-insured for purposes of the Rural Medical Access Program.

MARYLAND. SB 836, signed by the Governor in 2005, made technical changes to the Rate Stabilization Account and Medical Assistance Program Account. It also specified requirements for insurers reporting medical liability claims, and the penalties for failing to report. Made other technical changes to streamline the cancellation process for liability insurers (which is subject to review by Insurance Commissioner), and regarding the reporting and regulatory requirements for Medical Mutual Liability Insurance Society of Maryland.

MICHIGAN. In the year 2005, HB 4821 was signed by the Governor. This law provides that medical review entities are to receive information relating to appropriateness or quality of health care rendered or qualifications, competence, or performance of health care provider. The Department of Community Health would have jurisdiction over reports on medical practices.

MISSISSIPPI.  In the year 2005, the Governor signed HB 369. This law has created a Medical Malpractice Insurance Availability Plan to provide a market of last resort. This law was able to establish an advisory committee for the Tort Claims Board on medical liability issues.

MISSOURI. In the year 2005, the Governor signed HB 393. This law creates new venue rules for medical malpractice actions, including ones for wrongful death. After the court finds reason to award punitive damages,  the discovery of the defendant’s assets will be in order. Punitive damages are limited to the greater of $500,000 or 5 times net amount of total judgment. The liability of defendants is several unless there is more than 51% at fault. The limit of noneconomic damages that can be awarded is pegged at $350,000. Courts are required to dismiss any case filed without an affidavit of written opinion of negligence. Physicians providing free health care service in clinics are not civilly liable unless there has been a willful act or omission; and physicians’ expressions of sympathy are not admitted in court as admissions of liability. There is now a peer review committee, with specified procedures for review. 2 years from 18th birthday marks the Statute of Limitations requirement. A related bill, SCR 19, created a Joint Interim Committee on Missouri Health Care Stabilization Fund created to investigate establishment and implementation of fund, feasibility of paying damages to claimants (the primary objective being to assure reasonable medical liability coverage).

MONTANA. In the year 2005, the Governor of Montana signed SB 21. This law relates to damages awarded based on “reduced chance of recovery.” SB 316, specifies that reports from medical liability insurers are to be sent annually to Insurance Commissioner. HB 24 provides that a medical personnel’s statement expressing apology or sympathy is not admissible in court as admission of liability. In this law, the liability of health care providers was minimized because they are no longer liable for the fault of their employees. A related bill, HB 26, states that a health care provider is not liable for any act or omission committed by someone who purports to be a member of that organization. The law has created qualifications for medical witnesses in order to ensure their credibility and competence. HB 138 clarifies that a Board of Medical Examiners is to establish disciplinary screening panels to oversee rehabilitation programs for medical personnel. HB 254 makes medical practitioners guilty of a civil offense and fined up to $500 per offense for writing illegible prescriptions. The licensure board is in charge of the complaints filed before it.  HB 331 provides that the Insurance Commissioner is to conduct market review of malpractice insurers in Montana; based on findings, is to create market assistance plan or joint underwriting association. Bill also contained specifications for potential market assistance plan and joint underwriting association, and specified limits for claimants under policies, underwriting, and reinsurance.

NEVADA. AB 208, signed by the Governor in 2005, provides that applicants for medical licenses are required to submit to criminal background check, as well as physicians against whom any disciplinary action is initiated. There are now expanded grounds for initiating disciplinary proceedings against medical personnel. Criminal justice agencies are = to provide criminal histories to Board of Medical Examiners.

NEW HAMPSHIRE. The Governor of New Hampshire signed SB 57 in 2005. This law is significant because it establishes a commission to study ways to alleviate medical malpractice premiums for high risk specialties, but purview does not include examination of civil justice system specific to malpractice claims. On the other hand, SB 214 establishes panels for medical injury claims, including conditions for confidentiality and release of information to public, also, the creation of a panel and insurance oversight committee to study medical liability insurance rates and effectiveness of mandatory panel process. The courts now require the Insurance Commissioner to make Annual reports. The special panels for the conduct of hearing have been dissolved. HB 514 creates a 5-year health care quality assurance commission to provide information sharing among health care providers about adverse outcomes and prevention strategies. The information submitted, proceedings and deliberation results are to be held confidential. Statements and actions from medical personnel are governed by HB 584.

NEW JERSEY. In year 2005, the Governor of New Jersey signed S 1804. This created the requirement imposed on medical facilities to report disciplinary action taken by any facility against any health care professional relating to incompetence or professional misconduct. All health care professionals are to undergo criminal history background check when renewing medical license. There will be reporting of health care professionals to state and employers when specified as necessary. Job performance inquiry by another employer are now required to be accommodated by other employers.

NEW MEXICO. In the year 2005, SM 7 has created New Mexico Health Policy Commission and Insurance Division of Public Regulation Commission to convene task force on medical liability insurance; review relevant state statutes, make recommendations to legislature and governor.

NORTH DAKOTA. In the year 2005, the Governor signed SB 2199. Given this effective law, the plaintiff must submit an expert opinion affidavit to individual medical personnel or facility named as defendant within 3 months of commencement of malpractice action.

OREGON. SB 443, signed by the Governor in 2005, allows Board of Medical Examiners to require health care providers to take national licensing exam under circumstances of volunteering in charitable health clinics.

SOUTH CAROLINA. In the year 2005, the Governor signed S 83. This law limited the noneconomic damages to $350,000, with exceptions specified. Also, new standards for expert witnesses and mandatory mediation for malpractice actions (binding arbitration are permitted). Provisions relating to Joint Underwriting Association and Patients Compensation Fund. Malpractice insurance providers are required to maintain coverage for licensed health care providers. The bill also requires a notice to all locations where health care provider has a medical license to practice, when the South Carolina medical license is suspended or revoked. If there is any percentage of plaintiff fault in a malpractice action, it will not cause reduction of recoverable damages. Another related bill was also passed. This is called H 3108. This law overed provisions relating to investigations of complaints against physicians by Medical Disciplinary Commission.

SOUTH DAKOTA. HB 1104, signed by the Governor in 2005, provides that damages are limited that may be awarded in malpractice action against a podiatrist. HB 1148 makes statements and actions expressing apology or sympathy made by health care providers admissible as admission of liability.

TENNESSEE. SB 212, signed by the Governor in 2005, declares that medical practitioners voluntarily and without compensation providing health care services within scope of state license at health clinics receive civil immunity for rendered services, unless act or omission was gross negligence or willful misconduct.

UTAH. The Governor of Utah signed SB 83 in 2005. The law declares that medical malpractice actions may not be brought against health care providers due to consequences resulting from refusal of child’s parent or guardian to consent to recommended treatment.

WEST VIRGINIA. The Governor of West Virginia signed HB 2011 in 2005, states that Health care providers are not liable for personal injury caused by prescription drug or medical device used in accordance with FDA regulations. HB 3174, also signed by the Governor, makes any expression made by a health care provider of apology or sympathy is not admissible as an admission of liability.

WYOMING. The Governor signed a law in 2005, requires additional advance notice of medical liability insurance policy cancellation or premium increase. A public hearing is required if insurer requests to raise premium rate by 30% or more. SF 0088 requires additional specified information on medical malpractice claims to be reported. HB 0083 repeals the current Medical Review Panel and recreates a panel according to constitutional amendment adopted in the 2004 general election.

Few state court rulings include DeWeese v. Weaver, a Pennsylvania Commonwealth Court declared that separation of joint and several liability was unconstitutional based on the germane standard of legislation enacted in 2002. In Ferndon v. Wisconsin, the Wisconsin Supreme Court held that noneconomic damages in medical injury cases were unconstitutional.

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