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STATE MEDICAL MALPRACTICE REFORM
2005 NUMBERS AT A GLANCE
This list provides a topical summary of medical malpractice reform provisions under consideration in state legislatures during the 2005 session. The topics are listed alphabetically.
2005 LEGISLATION INTRODUCED
As of June 24, 2005, 430 bills addressing aspects of the medical malpractice issue have been introduced in the state legislatures.
Introduction of medical malpractice reform legislation: 48 states
Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming.
2005 LEGISLATION ENACTED
As of June 24, 2005, these states have enacted medical malpractice reform legislation into law, including a Governor's signature.
Enactment of medical malpractice reform legislation: 27 states
Alaska, Arizona, Arkansas, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, North Dakota, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia, Wyoming.
AFFIDAVITS or CERTIFICATES OF MERIT
These provisions would require an affidavit or certificate of merit from a medical expert to be submitted by a claimant when a malpractice complaint is filed.
Consideration of expert affidavit requirements and standards: 16 states
Connecticut, Georgia, Illinois, Kentucky, Missouri, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Rhode Island, South Carolina, Tennessee, Vermont, Virginia, Washington.
ALTERNATIVE DISPUTE RESOLUTION and ARBITRATION
Alternative dispute resolution and arbitration, as options for resolution prior to filing a lawsuit or going to trial, vary from state to state, whether they are required or any associated decisions are binding.
Consideration of alternative dispute resolution or arbitration guidelines: 9 states
Connecticut, Illinois, Kentucky, North Dakota, Ohio, South Carolina, Tennessee, Vermont, Washington.
ATTORNEY FEES
These provisions would limit the portion of awarded damages an attorney can collect as a fee for legal services in a medical malpractice action.
Consideration of limitations of attorney fees: 12 states
Connecticut, Hawaii, Maryland, Minnesota, New York, North Carolina, Oklahoma, Pennsylvania, South Carolina, Tennessee, Virginia, Washington.
COLLATERAL SOURCE
This court rule allows for payments received by a patient to be entered into evidence in a malpractice trial, such as insurance coverage.
Consideration of collateral source rule: 9 states
Connecticut, Hawaii, Maryland, Missouri, North Carolina, Oklahoma, Oregon, Tennessee, Vermont.
DAMAGES LIMITS
Noneconomic damages are awarded for intangible pain and suffering. They are separate from punitive damages, which are intended to punish a defendant found guilty of wrong-doing. States are considering the introduction of change of noneconomic and/or punitive damage limits at varying levels.
Consideration of introducing noneconomic damage limits or changing damage limits already in statute: 28 states
Alaska, Arizona, Connecticut, Georgia, Hawaii, Illinois, Indiana, Iowa, Kentucky, Maine, Maryland, Massachusetts, Minnesota, Missouri, Montana, Nevada, New Hampshire, New Jersey, New York, North Carolina, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Vermont, Virginia, Washington.
DOCTOR APOLOGIES
A typical provision states that a medical professional's expression of sympathy, benevolence, or apology would not be considered at trial as evidence or an admission of liability or guilt.
Consideration of introducing “doctor apology” provisions: 19 states
Arizona, Connecticut, Georgia, Illinois, Louisiana, Maine, Maryland, Massachusetts, Michigan, Missouri, Montana, New Hampshire, South Carolina, South Dakota, Tennessee, Vermont, Virginia, Washington, West Virginia.
EMERGENCY LIABILITY
These provisions would limit the civil liability of medical professionals acting within the scope of their responsibility in an emergency situation, including the emergency room of a hospital, and outline specifications and considerations for the limits.
Consideration of emergency liability limitations: 10 states
Georgia, Hawaii, Illinois, Maryland, Montana, New Jersey, North Carolina, Oklahoma, Rhode Island, South Carolina.
EXPERT WITNESS QUALIFICATIONS
These provisions define standards under which a medical professional may testify in a malpractice trial as an expert witness.
Consideration of expert witness standards: 17 states
Arizona, Connecticut, Florida, Georgia, Illinois, Maryland, Missouri, Montana, New Jersey, New York, North Carolina, Rhode Island, South Carolina, Tennessee, Vermont, Washington, Wyoming.
INSURANCE FUNDS
States have created insurance assistance funds for doctors ranging from assistance in paying premiums, paying malpractice awards within parameters, and other options. They are funded by the state or by medical professionals and administered by the state.
Consideration of creating or revising a state-sponsored insurance fund: 21 states
Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Iowa, Maryland, Massachusetts, Mississippi, Missouri, New Jersey, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Virginia, Washington, Wisconsin.
INSURANCE PREMIUM APPROVAL
These provisions would require any insurance provider to submit premium rate changes within a specified range to the state Department of Insurance for approval prior to enacting such changes.
Consideration of premium change approval requirement: 13 states
Connecticut, Georgia, Illinois, Kentucky, Maine, Maryland, Massachusetts, Missouri, New Hampshire, North Carolina, Tennessee, Washington, Wyoming.
INSURANCE REFORM
These provisions would enact general reform of the issuance of malpractice insurance and include a broad range of specifications.
Consideration of malpractice insurance reform: 20 states
Arkansas, Florida, Hawaii, Illinois, Kentucky, Maine, Missouri, Montana, New Hampshire, New Jersey, New York, North Carolina, Pennsylvania, Rhode Island, South Carolina, Texas, Vermont, Virginia, Washington, Wyoming.
INSURANCE REPORTING
These provisions would require all insurance providers to annually report to the state all malpractice claims paid, whether in settlement or judgment, as well as other data in the previous year.
Consideration of insurance reporting requirements: 21 states
Arkansas, Connecticut, Delaware, Georgia, Illinois, Kentucky, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Montana, New Jersey, New York, North Carolina, Rhode Island, South Carolina, Tennessee, Virginia, Washington, Wyoming.
JOINT AND SEVERAL LIABILITY
Joint and several liability is used in the case of multiple defendants. To be jointly liable, each defendant is individually liable for all damages. To be severally liable, each defendant is liable only for his/her percentage of negligence. States are revising joint/several liability provisions to hold medical professionals severally liable.
Consideration of revision of joint and several liability: 12 states
Connecticut, Georgia, Hawaii, Maine, Massachusetts, Missouri, New Jersey, Rhode Island, South Carolina, Vermont, Washington, West Virginia.
MEDIATION
Mediation is frequently a voluntary action by both parties in a medical malpractice complaint. These provisions would make mediation mandatory prior to going to trial.
Consideration of mediation requirements: 8 states
Connecticut, Kentucky, Missouri, New Hampshire, New Jersey, South Carolina, Vermont, Washington.
PATIENT INFORMATION
These provisions would allow for the release to the defendant of a plaintiff's patient information applicable to a medical malpractice complaint without compromising doctor-patient privilege.
Consideration of release of patient information: 7 states
Arizona, Florida, Georgia, Maine, North Carolina, Tennessee, Virginia.
PEER REVIEW
Peer review is conducted by a state medical board or other appropriate panel to decide whether disciplinary action is warranted. These provisions would require such review in certain circumstances, and designate guidelines and definitions.
Consideration of peer review requirements and standards: 10 states
Alabama, Connecticut, Florida, Illinois, Missouri, Montana, Oregon, North Carolina, South Carolina, Tennessee.
PERIODIC PAYMENTS
This rule allows a court to create a payment plan for the disbursement of damages if the award is over a specified amount, rather than it being issued in one sum.
Consideration of periodic payments: 11 states
Connecticut, Georgia, Hawaii, Maryland, Missouri, New York, North Carolina, Oklahoma, South Carolina, Tennessee, Washington.
PRE-TRIAL SCREENING and REVIEW PANELS
Different from peer review, these panels would conduct preliminary hearings prior to a malpractice trial to determine the validity of the complaint. States have varying standards for allowing these proceedings to be allowed into evidence in any subsequent trial.
Consideration of the creation of review panels and associated standards: 13 states
Connecticut, Kansas, Louisiana, Maine, Mississippi, Nevada, New Hampshire, New Jersey, North Carolina, Pennsylvania, South Carolina, Tennessee, Wyoming.
PUBLIC ACCESS TO DOCTOR INFORMATION
These provisions would mandate the release of specified informtation about medical professionals to the public, typically via profiles posted on the internet. Most provisions include medical malpractice judgments and similar information about the physicians.
Consideration of physician profiles for public release: 7 states
Connecticut, Florida, Illinois, Mississippi, New Hampshire, North Carolina, South Carolina.
STATUTE OF LIMITATIONS
Over half of the states have a statute of limitations of 2 years from the injury to introduce a lawsuit. The limitation for introducing lawsuits in behalf of minors varies more widely. A number of these provisions have suggested revision.
Consideration of revision of statute of limitation: 13 states
Hawaii, Kentucky, Maine, Maryland, Minnesota, Missouri, New Jersey, New York, North Carolina, Rhode Island, Tennessee, Vermont, Washington.
STUDY COMMISSIONED
These provisions create special committees or task forces, or request that specified entities conduct studies on various aspects of the medical malpractice issue, to be reported to the state legislature at a date certain.
Consideration of commissioned study: 12 states
Connecticut, Hawaii, Iowa, Maryland, Missouri, Montana, New Hampshire, New Mexico, Oklahoma, Pennsylvania, Texas, Virginia.
TAX CREDITS
Tax credits would be made available to medical professionals as an assistance mechanism for medical malpractice insurance and other specified parameters, such as for rural medical practices or other specified areas of practice.
Consideration of tax credits: 8 states
Hawaii, Illinois, Louisiana, Mississippi, Missouri, New York, North Carolina, Washington.
“THREE STRIKES”
If a medical professional is found guilty in court of medical malpractice a certain number of times within a specified time period, he/she could lose the privilege of practicing medicine in that state, or have other requirements and restrictions placed up on him/her.
Consideration of “three strikes” provisions: 10 states
Alabama, Florida, Georgia, Illinois, Maine, Massachusetts, New York, North Carolina, Virginia, Washington.
VOLUNTEER LIABILITY
These provisions would limit the civil liability of medical professionals volunteering in free medical clinics.
Consideration of volunteer liability limitations: 11 states
California, Hawaii, Illinois, Indiana, Missouri, North Carolina, Rhode Island, Tennessee, Texas, Vermont, Virginia.
National Conference of State Legislatures
Updated June 24, 2005
For more information, please contact the NCSL Committee on Law & Criminal Justice:
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