Updated February 10, 2005In the mid-80s, most states enacted tort reform in response to problems resulting from rising insurance costs and decreasing insurance availability. Because this has been a state-by-state action, some groups have criticized the lack of uniformity and have called for federal action. ( See Table )
Since 1986, 38 have reformed joint-and-several liability rules; 23 states have enacted statutes limiting noneconomic damages, and currently 18 states have such statutes in place; and 34 states have restricted punitive damages. Research suggests that the noneconomic caps led to a "[l]arge decline in losses for both general and medical malpractice insurance" ; "increased profitability for insurers and a decrease in premiums" for medical malpractice liability insurers; and "a significant reduction in the number of court cases filed."
Nevertheless, physicians across the country are seeking additional tort reform from state lawmakers in the 2005 legislative session. Their primary goal seems to be to stabilize medical liability insurance premiums. Voters considered medical tort reform in four states during the 2004 election.
Physicians will seek a noneconomic damages cap and insurance premium relief.
In November 2004, voters approved a physician-led proposal to limit attorney fees as well as two initiatives promoted by trial lawyers: that patients have the right to know about adverse events and a "three-strikes" rule against doctors. The trial attorney initiatives had significantly larger majorities (81% and 71% compared to 64% for the physician initiative).
Gov. Rod R. Blagojevich reopened mediation in September 2004. Physician goals include: a $250,000 cap on noneconomic damages, protection for physician assets, a change in expert witness laws.
At the close of the 2004 special session, the legislature passed a tort reform measure but the Governor is expected to veto the measure. It limits annual insurance premium increases and temporarily freezes the state limit on noneconomic damages at $650,000.
Incoming Gov. Matt Blunt has given tort reform top priority. Twice, former Gov. Bob Holden vetoed tort reform packages pushed by doctors and approved by the legislature.
In November 2004, voters strengthened the state's existing cap of $350,000 for noneconomic damages. As in Florida, more voters voted with "the other side": they failed to roll back insurance rates or to penalize lawyers who file "frivolous lawsuits."
In November 2004, voters failed to amend the constitution to restore a cap on noneconomic damages of $500,000; the legislature had enacted the cap for more than a decade earlier, but the state Supreme Court ruled that the legislature did not have that authority.
Physicians will again seek to amend the state constitution so that the Legislature can consider award caps.
Doctors will push for a $250,000 cap on noneconomic damages and elimination of a prohibitition against binding arbitration between doctor and patients.
Doctors will push for a $250,000 cap on noneconomic damages and "'I'm sorry' language that will allow doctors to apologize without their words being used as an admission of guilt during a trial."
In late December 2004, a physician-led coalition put the Health Care Access Initiative on the legislative agenda. The initiative limits attorney contingency fees and caps noneconomic damages at $350,000 to $1.05 million, depending on the number of defendants. Both houses of the legislature returned to Democratic control after this election.
In November 2004, voters approved forming a medical review panel to determine nonmeritorious lawsuits; legislators must develop an implementation plan. Voters rejected a limit on noneconomic damages.
Sources: AMA-1, AMA-2, CBO, NCSL