Medical Malpractice Tort Reform
Background
Updated February 8, 2007
Since 2000, the issues of medical liability insurance costs and medical malpractice lawsuits have been prominent on both state and federal legislative calendars. The resources provided here are intended to apprise legislators and legislative staff of state activities within this arena.
2006 State Activity
The 2006 state legislative sessions continue to be active in carrying over reforms introduced in 2005, introducing new medical malpractice reforms, and modifying programs that have been enacted in previous sessions. Most bills in 2005 focused on traditional tort reform issues such as limits to noneconomic damage awards, the allocation of plaintiff attorney fees as a percentage of a damages award, expert witness standards, and the inadmissibility of apology statements by health care practitioners. These issues continue to appear in the 2006 legislation, but are increasingly accompanied by a focus on greater accountability for insurance companies by requiring reports from medical malpractice insurance providers and proposing various state controls on insurance premium rates. States are also looking at litigation alternatives such as the "Sorry Works" program. As of May 1, 36 states are considering medical malpractice legislation in some form, and nine states have enacted bills this year. Please see this list for details.
Thirteen states are noted to carry over legislation from 2005 as part of their 2-year sessions or to reintroduce various bills. New legislation has been located in some of these. Six states - Arkansas, Montana, Nevada, North Dakota, Oregon and Texas - conduct biennial sessions which are not scheduled to convene in 2006.
2006 Federal Activity
President Bush reiterated a call for Congressional action on medical liability reform, as he has done multiple times, in his 2006 State of the Union address. The U.S. House has not considered any new legislation beyond the bills it passed in 2005, most notably HR 5. The U.S. Senate has planned a "Health Care Week" at the beginning of May 2006, which will include consideration of Senate Bills 22 and 23. Senate Bill 22 contains the provisions listed above; Senate Bill 23 is focused primarily on obstetrics.
NCSL continues to oppose any federal preemption of state authority within the civil justice and tort law areas, and strongly encourages state legislators to contact their Congressional delegations to prevent this voiding of state authority and the hard work of so many state legislatures.
2005 State Activity Review
Medical malpractice tort law has always been maintained at the state level. All states have at least some laws governing medical liability lawsuits. The vast majority of states have statutes of limitation of two years for standard medical malpractice claims. Over half of the states have limits on damages awards. Almost all states have eliminated joint and several liability in malpractice lawsuits, and many states have established limits on attorney fees.
In 2005 alone, 48 state legislatures responded to fevered calls for medical liability reform through the introduction of over 400 bills to address the situation. Solutions ranged from enacting limits on noneconomic damages, to malpractice insurance reform, to gathering lawsuit claim data from malpractice insurance companies and the courts for the purpose of assessing the connection between malpractice settlements and premium rates. During the 2005 legislative session, 32 states enacted over 60 bills, and 2 more states had Supreme Court rulings relating to medical liability lawsuit statutes. Some states chose to enact a number of reforms within one bill; other states enacted a number of bills, each addressing one or two points of medical liability reform. The plethora of solutions proposed and the variety of aspects addressed in the state legislation demonstrate the diversity of the problem of medical liability insurance costs from state to state. 2003 and 2004 also saw a lot of discussion and debate in the state legislatures as they progressed through the thorny territory of concerns on medical liability costs.
2005 Federal Activity
Despite the extensive state work on medical liability costs, many parties in the medical liability conflict have seen fit to take their complaints to Capitol Hill and have found a receptive audience. Medical liability reform was made a centerpiece of the 2004 Presidential election, as well as many Congressional races.
Congress continues to repeatedly ignored state medical malpractice reform efforts, and the disconnect between federal and state work on medical malpractice issues has become more pronounced in the last two to three years. The 109th (2005-2006) Congress has seen the introduction of many federal bills on medical malpractice tort reform that operate under the premise that the states are not addressing medical liability reform, that focus solely on the litigation angle, and that ignore other relevant issues related to insurance and medical standards of care. Traditional supporters of federalism have turned their backs on their states in favor of intrusive legislation that will nullify the work of their state legislatures executed over the last three years. It will completely eliminate any opportunity for states to continue to craft laws addressing further malpractice issues and formulating responses applicable to specific problems. Federal legislation will also mean that areas of law traditionally regulated by states – torts, evidence and civil procedure – will no longer be under the purview of the states, but rather the federal government.
The proposed federal legislation, introduced in 2005 and continuing in 2006, would dismantle state judicial authority and preempt all existing state laws governing medical malpractice lawsuits with the following:
- Limits on noneconomic (pain and suffering) damages at $250,000;
- A 3-year statute of limitations to initiate lawsuits, or one year from discovery; statute of limitations for children until age 8;
- Limits on attorneys fees in settlement or judgment;
- Collateral source benefits may be introduced into evidence in court;
- Periodic payments ordered for future damages exceeding $50,000;
- Standard guidelines for awarding punitive damages and limitations on the amount awarded;
- Prohibitions on instructing a jury about any limitations to damage awards;
- Punitive damages may not be awarded against the manufacturer or distributor of a medical product approved by the Food and Drug Administration;
- A specific statement that the provisions would preempt all state laws not in conformance with the standards presented.
NCSL Policy
Due to the bipartisan mandate of the organization, NCSL does not take a substantive position in the medical liability tort reform debate or make recommendations of best practices. NCSL does, however, maintain that any tort reform efforts belong under the purview of the states and that any federal legislation on this issue inappropriately interferes with state jurisdiction. NCSL has policy opposing any federal legislation that preempts state regulation of medical malpractice tort law, especially in the areas of statutes of limitation, rules and standards of evidence, the drafting of pleadings, the awarding of attorney fees, and damages limits. |
