State Law Summaries: Medical Malpractice and Reform
State law governs the applicable statute of limitations (time within which individuals must file a lawsuit) for medical malpractice suits, as well as the minimum qualifications of expert witnesses (e.g., whether a non-board-certified general practitioner may testify against a specialist, or vice-versa, etc.). Many states have passed legislation imposing limitations or "caps" on monetary damages recoverable in malpractice suits, but the courts in some of these states have declared the laws unconstitutional.
Each state also has its own laws regarding "wrongful death" claims alleging malpractice as the cause of death. Virtually all states allow longer limitations periods for disability, incompetency, minority, foreign objects left in the body, or fraudulent concealment preventing earlier discovery. One of the most recurring provision coming out of the tort reform movement was the inadmissibility of statements made by medical professionals in sympathy or concern, or apologies made by them for treatment rendered, as evidence of fault or malpractice.
ALASKA. SB 67, signed by the Governor in 2005, limits noneconomic damages to $250,000. Noneconomic damages for wrongful death or injury over 70% disabling in severe permanent impairment are limited to $400,000. Damages limits are not applicable to intentional misconduct or reckless acts or omissions.
ARIZONA. SB 1036, signed by the Governor in 2005, made some changes to expert witness qualifications specific to malpractice actions. Also, apologies and similar gestures by health care providers are not admissible in court as admissions of liability.
ARKANSAS. SB 233, signed by the Governor in 2005, creates an insurance policy holder's bill of rights, and amends standards and criteria for medical liability insurance rates, rate administration, rate criteria. Medical liability insurers are to file specific information with Insurance Commissioner, available to public.
CALIFORNIA. SB 231, signed by the Governor in 2005, provides that malpractice judgments or settlements over $30,000 must be reported to appropriate licensing board 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. There will now be an independent commission 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. It also creates "offer of compromise" guidelines, associated interest rates reduced. 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. Patients/ public now have 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 by health care providers are not admissible in court as admission of liability.
DELAWARE. HB 75, signed by the Governor in 2005, creates 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. Medical personnel are not liable for civil damages for emergency medical aid rendered without compensation at scene of emergency. Also, HB 133, signed by Governor in 2005, states that all medical negligence claims settled or awarded against health care providers are to be reported to Commissioner by defendant and associated insurance provider within 60 days of final disposition of claim.
FLORIDA. S 938, signed by the Governor in 2005, implements "Patients' Right to Know" 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. S 940, also signed into law in 2005, implements 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). Finally, the Department of Health is to carry out disciplinary action against physicians found guilty of medical malpractice.
GEORGIA. SB 3, signed by the Governor in 2005, requires affidavits in medical malpractice complaints, but it also 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. Malpractice insurers are to report to state any judgment or settlement over $10,000. 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. There is limited liability in emergency room situations unless proven gross negligence. There is a revision of joint/several liability. Now a $350,000 noneconomic damage limit; aggregate limit of $1.05 million.
ILLINOIS. SB 475, signed by the Governor in 2005, 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. Medical liability insurance data disclosure to public will also be made via internet. There are changes to the Medical Disciplinary Board, including an increase of disciplinary fines and extension of statute of limitations for complaints. The law also creates a Patients' Right to Know. Another bill, SJR 3, also adopted, petitions the state Supreme Court to provide for specific medical malpractice recordkeeping, case designation, and reporting.
INDIANA. SB 54, signed by the Governor in 2005, 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. HR 50, adopted in 2005, provides that the legislative Council will establish an interim committee to provide regulatory agencies and legislature with alternatives for alleviating problems with availability and affordability of medical liability insurance.
KANSAS. SB 100, signed by the Governor in 2005, provides that risk management programs may be established in nursing and assisted living facilities. Specified requirements include the reporting of incidents, which are then referred for investigation but are not admissible in civil lawsuit action without court determination that reports are relevant to allegations.
LOUISIANA. SB 184, signed by the Governor in 2005, provides that medical information gathered by medical or insurance facility to identify cause of adverse outcome are not admissible as court evidence. Also, expressions of sympathy by medical personnel 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, but there is no immunity for willful negligence or misconduct. 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. LD 385, limits liability for ambulance services. LD 1378 provides that expression of apology or sympathy by a medical practitioner is not admissible as admission of liability. LD 1472, clarifies that 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. HB 4821, signed by the Governor in 2005, 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. Any reports of disciplinary action are to go to the Department of Community Health.
MISSISSIPPI. HB 369, signed by the Governor in 2005, creates a Medical Malpractice Insurance Availability Plan to provide a market of last resort. It also creates an advisory committee for the Tort Claims Board on medical liability issues.
MISSOURI. HB 393, signed by the Governor in 2005, creates new venue rules for medical malpractice actions, including ones for wrongful death. Discovery of defendant's assets is only after court finds in favor of awarding punitive damages. 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. Noneconomic damages are limited to $350,000. (There was also a repeal of the current annual inflation adjustment.) 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. The statute of limitations for minors is 2 years from 18th birthday. 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. SB 21, signed by the Governor in 2005, 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. HB 25, states that a health care provider is not liable for employee's act or omission that occurred when employee was not under the jurisdiction of health care provider. 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. HB 64 establishes new qualifications for expert witnesses in medical malpractice cases. 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. Complaints are to be filed with licensure board. 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. SB 57, signed by the Governor in 2005, 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. SB 214, creates 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. Annual reports to Insurance Commissioner are now required from courts. The current hearing panels for medical malpractice complaints are repealed. 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. HB 584 declares that statements or actions from medical personnel expressing sympathy relating to personal injury are not admissible as admission of liability, and dos not apply to statements of fault.
NEW JERSEY. S 1804, signed by the Governor in 2005, now requires 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. Employers of health care professionals are to disclose job performance upon inquiry of another employer.
NEW MEXICO. SM 7, adopted in 2005, creates 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. SB 2199, signed by the Governor in 2005, provides that a 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. S 83, signed by the Governor in 2005, limits 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. A related bill, H 3108, covered 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. SB 83, signed by the Governor in 2005, 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.
VIRGINIA. SB 1173, HB 2659 (identical bills) were both signed by the Governor in 2005. They require that an expert witness certification of deviation from care standard to be filed before malpractice lawsuit can be filed. Moreover, physician's expression of sympathy is not admissible in court as admission of liability. Admissible evidence is now expanded, to include observations, evaluations and histories in treatment applicable to lawsuit, which now may be disclosed; the definition of "malpractice" is limited to tort or breach of contract; and malpractice liability insurers are required to submit annual reports to State Corporation Commission regarding claims made against medical personnel. Finally, the Board of Medicine is to assess competency of medical personnel with three malpractice claim payments within ten years. SB 1323 and HB 1505, also identical bills, provides a Birth-Related Neurological Injury Compensation Fund definition such that when infant weighs less than 1800 grams at birth or is at less than 32 weeks of gestation, there will be a rebuttable presumption that the alleged injury is a result of premature birth. HB 1556 states that the Board of Medicine is required to inform licensees about immunity for services to patients of free clinics. HB 2410 provide that Liability insurers are required to provide 90-day notice of policy cancellation or non-renewal, or premium increase of more than 25% for malpractice insurance.
WEST VIRGINIA. HB 2011, signed by the Governor 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. SF 0078, signed by the Governor 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.
Additionally, a few state court rulings addressed some of the new statutes: In 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.