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Medical Malpractice/Tort Reform Measures on the 2004 Ballot

November 17, 2004

Background

Tort reform has been a very contentious issue in state legislatures and the Congress in recent years.  In fact, it has led to some of the bitterest legislative fights in recent memory in some states.  It has also come up as a topic in the presidential campaign.  On the one hand, doctors say that the cost of medical malpractice insurance has been driven up by the number of frivolous malpractice cases to the point where they cannot afford to practice in high-risk specialties.  On the other hand, opponents say it’s fundamentally unfair to limit a person’s right to sue of incidents of medical malpractice.

What’s on the ballot this year?

This year, there are nine medical malpractice measures on the ballot in four states.  If you broaden the category to include tort reform in general, you can add measures in California and Colorado to the list.

Source:  National Conference of State Legislatures, November 2004

How does this compare to previous years?

• In 2003, voters in Texas approved a legislative referendum allowing the legislature to limit noneconomic damages in medical malpractice suits.  Additionally, under this measure the legislature may act to limit awards in all other types of cases after January 1, 2005.
• In 1996, California voters turned down two tort reform initiatives, Propositions 207 and 211.  They would have imposed sanctions on attorneys who file frivolous lawsuits and restricted attorney fees.
• In 1994, Arizona voters declined to pass Proposition 103, an initiative that would have allowed the legislature to enact restrictions on the recovery of damages for death and personal injury.

Who are the players?

Generally, doctors and the business community come down on the side of favoring medical malpractice tort reform.  They say the cost of doing business has become unmanageable as the cost of malpractice insurance has skyrocketed.  Trial lawyers generally oppose tort reform measures.

State-by-State Summaries of 2004 Tort Reform Measures

California

Proposition 64 would restrict who can bring lawsuits for unfair business competition.  This involves cases over deceptive or misleading advertising and health and safety requirements.  Currently, anyone can bring such a suit.  Under this proposal, individuals must have suffered injury and lost money or property before they can sue for unfair business practices.  It would also require that lawsuits brought on behalf of others be class actions and meet the requirements of class action lawsuits.  Finally, Prop. 64 would restrict the use of any revenues gained from civil penalties in these cases, specifying that they must be used to enforce consumer protection laws.

Colorado

Colorado’s Amendment 34 would repeal current limitations (passed by the 2003 legislature) on homeowners’ right to sue homebuilders.  Currently, homeowners are required to try for 75 days to negotiate a settlement before they can sue, and there is a limit of $250,000 on noneconomic damages.  The measure also prohibits any future limits on homeowners’ ability to sue homebuilders.

Florida

Florida has three measures related to medical malpractice on the ballot this year.  Amendment 3 would limit contingency agreements between attorneys and clients in medical malpractice cases.  It specifies that the claimant would be entitled to no less than 70% of the first $250,000 in damages, and 90% of any damages in excess of that amount.  Amendment 7 allows patients to see doctors’ and hospitals’ records of adverse medical incidents, like malpractice.  Amendment 8 would prohibit the state from licensing doctors who have committed three or more incidents of malpractice.  To qualify, there must be a finding of medical malpractice by a court, administrative agency, or binding arbitration.

Nevada

Nevada also has three measures related to medical malpractice on their ballot this year.  Question 3 would extend current limits on noneconomic damages and limit attorney fees in malpractice cases.  Currently, there is a limit or $350,000 on noneconomic damages, with two exceptions—if the wrongdoer committee “gross malpractice” or if exceptional circumstances justify it, an award may be made in excess of the cap.  Question 3 would remove these two exceptions and subject all awards to the cap without exception.  It would also limit attorney fees in malpractice cases.  Question 4 would decrease auto insurance premiums by 20%.  It would also void certain limits on damages in medical malpractice cases.  Question 5 would penalize lawyers who file “frivolous and vexatious” lawsuits—those that are filed solely to harass the opposing party or to seek economic gain unrelated to the merits of the case.  It would also prohibit future limits on noneconomic damages.

Oregon

Oregon’s Measure 35 would impose a limit of $500,000 on noneconomic damages in medical malpractice cases.  Noneconomic losses generally include pain and suffering, inconvenience, mental anguish, loss of capacity to enjoy life and loss of consortium.

Wyoming

Wyoming has two medical malpractice cases on the ballot, both referred by the legislature.  Amendment C would allow the legislature to enact laws requiring alternative dispute resolution or medical panel review before a medical malpractice suit may be filed.  Amendment D would allow the legislature to enact limits on noneconomic damages in medical malpractice lawsuits.

For more information

For more information on ballot measures, contact Jennie Drage Bowser in NCSL’s Legislative Management Program.