Monday, March 6, 2017
Both the House and Senate have passed a med mal review panel bill, and it is on its way to Governor Matt Bevin. The gist:
The proposed law would require plaintiffs to submit medical malpractice claims for review to an advisory panel that would review the case and determine whether it has merit or is frivolous before issuing a nonbinding opinion as to whether the case should proceed.
Trial judges would decide the admissibility of the panel's finding.
When our firm represented med mal plaintiffs in Virginia, a review panel law was in place. We routinely declined to participate in the process. When the results were provided to the jury our non-participation in the panel procedure was noted. The panels are a waste of time. A better way to reduce suspect lawsuits is to use a certificate of merit procedure. It is not perfect, but it accomplishes the goal of reducing frivolous suits more directly, and without an impact on plaintiffs whose suits are meritorious. Needless to say, it is far superior to caps for the same reason.
The National Law Review has the story.
Friday, March 3, 2017
The third of three in Bruce Kaufman's series on federal tort reform is here:
The House Judiciary Committee, by an 18-17 margin, approved legislation capping damages in medical malpractice cases. The federal legislation would cover individuals who are insured under Medicare, Medicaid, veterans or military health plans, and the Affordable Care Act, and could also impact people covered under COBRA or health savings plans. The vote surprised opponents of caps, who expected a vote in conjunction with the ACA replacement. STAT has the story.
Wednesday, March 1, 2017
Bruce Kaufman at Bloomberg has a 3-part series on federal litigation reform 2017. The first 2 pieces are available:
Tuesday, February 28, 2017
By a 66-30 vote, the House passed an amended proposal to put on the ballot a state constitutional amendment to cap non-economic and punitive damages in some lawsuits. It now goes back to the Senate, which had passed the proposal with smaller caps. McClatchy DC Bureau has the story.
Monday, February 27, 2017
The Arkansas legislature is considering a proposed constitutional amendment that would go to voters in November 2018. The version passed by the Senate would authorize a vote on caps on non-economic and punitive damages at $250,000 each. A House committee voted to increase those caps to $500,000 each. The amended bill must now pass both houses. Arkansas Online has the story.
Tuesday, February 21, 2017
The Southeast Missourian has a summary of all the reforms pushed in Missouri this year. Here is the bullet-point list:
Republicans this session have proposed dozens of bills under the tort-reform umbrella. Some of the proposals would:
* Add legal steps for people suing over asbestos exposure.
* Make it harder for employees to sue for discrimination in the workplace.
* Restrict injured or defrauded people from joining together in lawsuits against companies and clamp down on class-action lawsuits.
* Change the requirements used to determine whether a witness is an "expert" for non-jury civil cases.
* Allow juries to see only the out-of-pocket amount paid, not the price before insurance, for medical expenses in personal-injury cases.
Missouri already has passed laws supported by American Tort Reform Association in nine of 10 legal areas the group wants reformed, although the Supreme Court struck down some. Only Ohio, Texas and Colorado have done more, according to the association.
Monday, February 20, 2017
The Arkansas Senate voted 21-10 to send a proposed constitutional amendment involving damage caps to the House for further consideration. Given that 53 of the 100 members of the House are co-sponsors, it has a good chance of passing. If the House approves the proposal, it will be on the ballot in the 2018 general election. Arkansas Online has the story; more coverage at KARK.
Thursday, February 16, 2017
A bill to create med mal panels has, once again, been introduced in Kentucky:
The bill states that unless all parties involved agree to go directly to court, the complaint should be reviewed by an independent panel before it can move forward. The panel would consist of one attorney and three health care providers, with the attorney acting as the panel chairperson.
Once the panel is chosen, both parties may submit evidence to be reviewed. Two or more members of the panel must agree that evidence shows there was or was not malpractice.
The opinion will be issued within six months of the complaint being filed. That opinion can be used as evidence in the court if the case is able to move forward.
The bill passed the Senate in early January, but has made no progress in the House. Legal NewsLine has the story.
Wednesday, February 15, 2017
Friday, February 10, 2017
A proposed amendment to the Arkansas Constitution filed last week in the Senate seeks to limit the amounts that can be awarded to claimants in civil actions, such as medical malpractice lawsuits. If Senate Joint Resolution 8 is approved by the General Assembly — and with a long list of co-sponsors, it seems likely to pass — it would appear before voters on the 2018 ballot. Sen. Missy Irvin (R-Mountain View) is the lead sponsor.
Like the so-called "tort reform" measure on the 2016 ballot (which was disqualified by the state Supreme Court not long before the election), SJR 8 would place a cap of $250,000 on noneconomic damages, meaning compensation for hard-to-quantify personal losses such as pain and suffering. The proposed amendment also places a cap on punitive damages, though that ceiling is more flexible. But SJR 8 also would give the legislature control over the rules of pleading, practice and procedure in the judicial branch, thus taking power away from Arkansas courts and giving it to the General Assembly.
Thursday, February 9, 2017
Monday, February 6, 2017
According to this article in The Missouri Times, the collateral source and Daubert bills I reported on earlier are going to pass the state House. The next reform bills will focus on venue and joinder, and are aimed at restricting out-of-state plaintiffs from Missouri.
Tuesday, January 24, 2017
In Missouri, tort reform bills to adopt Daubert as the state standard on scientific and technical evidence and restrict the collateral source rule passed 9-3 in the House Special Committee on Litigation Reform. The bills move on to the full House. The Missouri Times has details.
Friday, January 6, 2017
Friday, December 30, 2016
The New Mexico legislature is considering a law that would extend the prohibition on asking job applicants whether they have criminal convictions to the private sector. Currently, governmental units are prohibited from asking the question at the screening phase. The goal is to allow people with convictions to more easily reintegrate into society. The rub, however, is that New Mexico recognizes the torts of negligent hiring and retention. An employer who hires or retains an employee who commits a tort when the employer knew or should have known of the risk posed by the employee could be liable. In his column, Joel Jacobsen calls for protections for employers as part of the new law. Of course, employers can still ask the question in subsequent phases of the hiring process.
Monday, December 26, 2016
The Courier-Journal compares Indiana and Kentucky on medical malpractice tort reforms, insurance premiums, and medical costs. The gist:
Indiana is only one of six states that cap damages of all kinds – including lost wages and the cost of medical treatment – to victims of medical malpractice.
Though the figures are scheduled to rise over the next three years, for now, individual doctors and hospitals are only on the hook for $250,000, and the total award to plaintiffs is limited to $1.25 million.
Patients also must submit their claims to medical malpractice review panels, before they can sue and go to court. And punitive damages are limited to three times the actual damages to the plaintiff.
The result is cheaper medical malpractice insurance premiums for doctors in Indiana, which Michael Rinebold, director of government relations for the Indiana State Medical Association, said encourages doctors to locate there.
Figures collected from malpractice insurance brokers show that doctors pay about 25 percent less for insurance in Indiana than Kentucky.
But doctors in Kentucky pay out only slightly more in average claims per year than their counterparts in Indiana, according to the National Practitioner Data Bank. And consumers in the two states pay virtually the same amount per person on doctors and hospitals, according to the most recent data available.
Thursday, December 22, 2016
In July, the Michigan Supreme Court ruled that state law in med mal cases allowed plaintiffs to recover the gross amount of medical bills charged by providers. Because insurers, Medicare, and Medicaid have provider rates substantially less than the charged rates, plaintiffs were able to recover more than the amount paid. The Michigan Senate has passed a bill restricting the amount of compensation in med mal cases to the amount paid, regardless of the amount charged. The bill is on its way to the governor for his signature. The Daily Reporter has the story.
Wednesday, December 21, 2016
The editorial board of The Columbus Dispatch has weighed in on the noneconomic damages cap upheld last week by the Ohio Supreme Court. It urges the General Assembly to amend the law next session to enact an exclusion for sexual-assault victims. It's a sound idea. Even if you support caps on noneconomic damages, caps that cover intentional acts are very rare.
Monday, December 19, 2016
The Supreme Court of Ohio has ruled, again, that a cap on noneconomic damages is constitutional. The suit involved a 15-year-old girl who was raped by her senior pastor during a counseling session in his office. The girl and her father sued the pastor and several other defendants and obtained a $3.6M verdict. After the cap was applied, the judgment was trimmed to $500,000. Marianna Brown Bettman (Emeritus, Cincinnati) has a detailed post at her blog, "Legally Speaking Ohio".