Feland wrote that the law's legislative record offered no explanation for how the $500,000 cap was chosen or how it would accomplish the Legislature's health care reform goals.
Monday, March 5, 2018
The Kentucky Senate passed a comprehensive med mal reform bill on Thursday, and now it heads to the state House. The bill would do a number of things:
Among its many provisions, Senate Bill 20 would require medical malpractice lawsuits to contain an affidavit of merit. That’s a document stating that at least one doctor agrees the claim has merit.
A medical review panel opinion in favor of a patient would fulfill the affidavit of merit requirement. Senate Bill 4 from 2017 created panels of experts to review claims of medical error or neglect. If the medical review panel finds in favor of the medical provider, however, the patient would still have to get an affidavit of merit to advance to court.
A second provision would impose contingency caps on attorney fees in medical malpractice cases. An amendment would set those caps at no more than 33 percent of any awarded damages.
A third provision is known as the “I’m sorry” clause. It would allow health care workers to express condolences or apologies to patients or families without fear of having those words used against them in a lawsuit.
A fourth would regulate fees for copying medical records. An amendment included an exemption from medical record copying fees for pro bono and Social Security disability cases.
The Ohio County Monitor has the story.
Saturday, March 3, 2018
In the early 1990s, Louisiana adopted a med mal cap of $500,000, which has never been adjusted for inflation. The cap does not apply to "future medical expenses." State senators are debating whether the cap should be raised. Bossier Press-Tribune Online has the story.
Wednesday, February 14, 2018
A state lawmaker has filed a bill to shift Michigan from a no-fault auto system to tort law. Michigan has the highest insurance rates in the nation; it is also the only state with an unlimited amount of lifetime benefits. Florida is also considering reverting to the tort system. WTOL 11 has the story.
Thursday, February 8, 2018
Last year, Kentucky passed a law requiring med mal cases to be reviewed by a panel prior to advancing to court. Now another reform is working its way through the legislature. Senate Bill 20, which just advanced out of committee, would place caps on a plaintiff's attorney's fees and prohibit expressions of sympathy from being used against physicians in med mal cases. The story from ctpost is here.
Wednesday, January 31, 2018
At Law 360, Y. Peter Kang discusses 4 constitutional challenges to state tort reforms: 1. KY's med mal review panels; 2. ND's med mal damages cap, struck down by a state trial judge as unconstitutional; 3. the Oklahoma Supreme Court's review of a $350,000 cap on noneconomic damages; and 4. the Wisconsin Supreme Court's review of an appellate court holding that its noneconomic damages cap is unconstitutional.
Tuesday, January 30, 2018
The state legislature and Governor Cuomo have reached a deal on Lavern's Law, the only bill remaining from the last session on which Cuomo has taken no action. The Daily News reports:
Gov. Cuomo and state legislative leaders have struck a deal for the medical malpractice bill known as Lavern’s Law to be signed into law.
Cuomo plans to sign the bill this week, after the Legislature votes to amend the version it passed in June. The bill would start a 2 1/2-year window to bring malpractice cases involving cancer when the patient discovers the error. Currently, the clock starts when the mistake occurs — meaning patients may lose their chance to sue before they even find out there’s been an error.
Under the amended version, people whose statute of limitations ran out in the last 10 months will get a six-month window to sue. The bill the Legislature passed offered a window for cases going back seven years.
The changes also make it more clear that the new rules apply only to cancer, not other illnesses.
The full article is here.
Thursday, January 11, 2018
In 1995, North Dakota passed a $500,000 cap on non-economic damages in medical malpractice cases. Recently a state judge refused to apply the cap and reduce a non-economic damages award by $1 million:
[Judge] Feland ruled the 1995 law violates equal protection guaranteed by the state constitution by arbitrarily reducing damages for people who suffer the most severe injuries.
"The greater the harm caused by the negligent doctor, the greater the discount," said Tom Conlin, Condon's attorney. "The cap fell hardest on stay-at-home moms, the young and those who couldn't prove large economic loss."
CHI St. Alexius Health said on Tuesday that it's exploring legal options.
U.S. News has the story.
Tuesday, December 26, 2017
Last week the Wisconsin Supreme Court unanimously adopted proposed amendments to the state's class action procedures designed to bring them into alignment with Federal Rule of Civil Procedure 23. The order replaces a one-sentence class action statute that is a hold-over from the nineteenth century Field Code. The order is here: Download DC-#649050-v1-2017_amendments_to_Wisconsin_class_action_rule
Wednesday, December 20, 2017
On Monday, Governor Cuomo signed legislation making the default purchase of UM/UIM (called SUM in NY, for Supplemental Uninsured/Underinsured Motorist coverage) the same as the insured's purchase of liability insurance; the default had been the state minimum. Insureds can opt out. As someone who has seen terrible under-compensation of injuries due to failure to purchase, or failure to purchase sufficient amounts of, UM/UIM coverage, I applaud this change. Eric Turkewitz covers it here.
Thursday, December 14, 2017
A state representative in Wisconsin has introduced a bill allowing patients to request audio and video recordings in operating rooms. The rationale is to have better evidence of whether an alleged medical error occurred. A similar bill was introduced in 2015, but did not gain traction. No jurisdiction in the United States has such a law. WDJT Milwaukee has the story.
Wednesday, December 6, 2017
Nebraska has one of the few caps in the nation that is applied to total, as opposed to non-economic, damages in med mal cases. In August 2015, a jury awarded the family of a brain-damaged infant $17M in damages. Pursuant to the cap, the trial judge reduced the award to $1.75M. Last June, the Eighth Circuit unanimously affirmed the trial judge. On Monday, the United States Supreme Court declined to hear the case. The family had argued the cap is unconstitutional:
The Eighth Circuit’s ruling contravened the Supreme Court’s 1998 holding in Feltner v. Columbia Pictures, which gives juries, rather than a trial judge, the authority to determine damages, Schmidt contended.
Further, the Seventh Amendment’s constitutional right to a jury trial should be made applicable to the states through the due process clause of the Fourteenth Amendment, Schmidt argued. She drew a parallel to the Supreme Court’s 2010 ruling in McDonald v. City of Chicago, in which the justices applied the right of gun ownership to the states, and by extension local governments, that attempted to ban handguns.
Law 360 has the story.
Friday, November 24, 2017
PA: Federal Judge Issues Preliminary Injunction to Prevent State from Dissolving Med Mal Insurer and Taking its Money
Two weeks ago, I reported that the Commonwealth of Pennsylvania was attempting to use surplus funds from a med mal insurer that was created by state law, but was not a part of state government. Pennsylvania, trying to balance its budget, passed a law requiring the Pennsylvania Professional Liability Joint Underwriting Association (JUA) to turn over $200M of a $268M surplus by December 1. If it fails to comply, the law abolishes the JUA and transfers its money to the Department of Insurance. Now Judge Christopher Conner has issued a preliminary injunction barring the state from carrying out that action. The judge's order puts the issue on hold until a federal trial can be held. PennLive has the story.
Friday, November 17, 2017
PA: State Senator Introduces Bill Banning Non-disclosure Agreements in Sexual Assault and Harassment Cases
Sen. Judy Schwank introduced a bill in the Pennsylvania Senate designed to prevent sexual offenders from settling cases without exposure:
Schwank's proposal, rolled out at a Capitol press conference Wednesday, would bar any contract or out-of-court settlement from containing provisions that:
* Prohibit disclosure of the name of any person suspected of sexual misconduct or any information relevant to a claim.
* Would block reports of such claims to an "appropriate person."
* Requires the destruction or expungement of related evidence.
The bill would, however, grant a shield of confidentiality to victims making allegations of abuse, giving them rights similar to juveniles in a child welfare case who can have cases brought through their initials or other identifiers.
California is the only state with such a law. Opponents argue the bill would discourage defendants from settling these cases.
Pennlive has details.
Monday, November 13, 2017
Almost two weeks ago, I reported that a Kentucky judge held unconstitutional the state's 2017 law requiring med mal cases to be reviewed by a panel of doctors prior to proceeding to trial. On Friday, the Kentucky Court of Appeals issued a stay of the order. The 89 current cases will proceed and prospective cases will have to proceed through the panel process. The stay is in effect until further notice. The Northern Kentucky Tribune has details.
Friday, November 10, 2017
The Pennsylvania Professional Liability Joint Underwriting Association (JUA) was created by state law in 1975, but the entity is not a part of state government. The JUA was founded as a last-ditch insurer for doctors at a time when malpractice insurance was in the first of several cyclical crises. It has a surplus of $268M. Pennsylvania, trying to balance its budget, passed a law requiring the JUA to turn over $200M of the surplus by December 1. If it fails to comply, the law abolishes the JUA and transfers its money to the Department of Insurance. The JUA has sued Governor Tom Wolf in federal court, asserting the seizure is an unconstitutional deprivation of property without due process of law. The Inquirer has details.
Wednesday, November 1, 2017
Earlier this year, the Kentucky legislature passed a law requiring med mal cases to go through a panel of doctors prior to going to trial. A state judge ruled Monday the law was unconstitutional and issued an order banning the state from enforcing the law. The state has announced it will appeal the ruling.
WKMS has details.
Friday, September 15, 2017
Tuesday, August 1, 2017
Like many states, Pennsylvania is facing a budget deficit. The legislature has gotten increasingly creative in finding ways to balance the budget. Years ago, the Pennsylvania Professional Liability Joint Underwriting Association was created by state law to provide med mal insurance. Now it has $200M that a Senate bill is requesting; if the money is not given to the state by November 1st, the Senate bill would abolish the Association. The Association has threatened to sue if the state moves forward; the bill is pending in the House. The San Francisco Chronicle has details.
Monday, July 31, 2017
Arizona Governor Doug Ducey weighed in favorably on a federal med mal cap, calling it an important element of any replacement of the Affordable Care Act. Voters in Arizona have rejected a state med mal cap three times. The Arizona Daily Star has the story.
Friday, July 28, 2017
Bruce Kaufman at Bloomberg BNA has written a piece about tort reforms stalling in the Senate. The House passed several bills that have not gained traction:
The bills, two of which still lack Senate sponsors, are:
- The Fairness in Class Action Litigation Act and Furthering Asbestos Claims Transparency Act ( H.R. 985) affects nearly all facets of class action practice, and mandates increased reporting of payments to plaintiffs by trusts that pay out asbestos exposure claims against bankrupt companies. It passed the House March 9 by a 220-201 vote.
- The Innocent Party Protection Act ( H.R. 725) targets what is known as fraudulent joinder—the improper addition of local defendants to suits in a bid to keep cases in more plaintiff-friendly state courts. It passed the House March 9 by a 224-194 margin.
- The Lawsuit Abuse Reduction Act ( H.R. 720; S. 237) requires judges to impose mandatory sanctions on attorneys who file “meritless” civil cases in federal courts. It passed the House March 10 by a 230-188 margin.
Several commentators in the piece focus on a surprising amount of conservative opposition to the bills.