Medical Liability/Malpractice 2010 Legislation

Last updated: February 15, 2011

NCSL Staff Contact: Heather Morton, Denver

Under state law, a patient may pursue a civil claim against physicians or other health care providers, called medical liability or malpractice, if the health care provider causes injury or death to the patient through a negligent act or omission. To recover damages, the patient must establish:

  1. the physician owed a duty to the patient;
  2. the standard of care and that the physician violated that standard;
  3. a compensable injury; and
  4. the violation of the standard of care caused the harm suffered by the patient.

The legislation in this list may include bills that relate to the following medical liability/malpractice issues:

  • Damage award limits or caps
  • Statute of limitation
  • Joint and several liability
  • Limits on attorney fees
  • Patient compensation or injury fund
  • Pre-trial alternative dispute resolution and screening panels
  • Affidavit or certificate of merit
  • Expert witness standards
  • Medical or peer review panels
  • Insurance premiums

Bills related to medical professionals apologies are listed in a separate Web page. 

AZ | CA | CO | CT | DE | DC | FL | GA | HI | IL | IN | IA | KY | LA | ME | MD | MA | MI | MS | MO | NE | NH | NJ | NM | NY | OH | OK | OR | PA | PR | RI | SC | SD | TN | UT | VT | VA | WA | WV | WI | WY
STATE
BILL SUMMARY
Alabama
none
Alaska
none
Arizona

H.B. 2465
The bill states that physicians are not held liable for failure to diagnose, treat, or communicate medical conditions to the examined individual when the examination is requested by a third party and for any of the following: (i) A scheduled medical examination for employees entitled to compensation. (ii) Preemployment examinations. (iii) Medical examinations to assess the extent of an injury for any action regarding medical reimbursement claims, personal injuries, or other damages under a policy of insurance. Includes an exception for personal injuries caused by the physician during the medical examination.

 

H.B. 2546
Provides that unless the necessary elements of proof are established by clear and convincing evidence, a health care provider is not liable for any civil or other damages as a result of any act or omission.

 

S.B. 1078
Makes a technical correction to a provision regarding nonadmissibility of certain types of evidence relating to professional liability insurance.

 

S.B. 1167
Relates to health care actions, amends provisions regarding burden of proof, jury instructions, and notice requirements.

 

S.B. 1214
Establishes limited liability for physicians conducting medical examinations pursuant to a workers’ compensation claim, a pre-employment medical examination, an insurance claim for reimbursement of medical expenses or an action for personal injuries.

Arkansas
none
California

A.B. 1570
Vetoed by governor 9/28/10
Requires the board, in conjunction with the Health Professions Education Foundation, to study the issue of its providing malpractice insurance for dentists who provide voluntary, unpaid services and report its findings to the Legislature on or before January 1, 2012. The bill authorizes the board to contract with an independent entity to conduct the study. The bill authorizes the board to expend funds from the Dentally Underserved Account to fund the study.

 

A.B. 2334
Creates the Volunteer Insured Dentists Program, administered by the board, to provide specified malpractice insurance coverage to volunteer dentists providing uncompensated care to low-income patients pursuant to a contract with a qualified health care entity, as defined. The bill provides unspecified funding for the program from the State Dentistry Fund for a limited period of time. The bill requires annual reports to the Legislature until January 1, 2015.

 

A.B. 2557
Provides that a licensed dentist, as defined, is entitled to all of the immunities from liability provided a public employee when treating or diagnosing a patient at no cost to the patient, as specified. The bill provides instead that the state may be held liable for any injury or damages resulting from that treatment or diagnosis.

 

A.B. 2699
Signed by governor 9/23/10, Chapter 270
This bill provides, until January 1, 2014, an exemption from the licensure and regulation requirements for a health care practitioner, as defined, licensed or certified in good standing in another state or states, who offers or provides health care services for which he or she is licensed or certified through a sponsored event, as defined, (1) to uninsured or underinsured persons, (2) on a short-term voluntary basis, (3) in association with a sponsoring entity that registers with the applicable healing arts board, as defined, and provides specified information to the county health department of the county in which the health care services will be provided, and (4) without charge to the recipient or a third party on behalf of the recipient, as specified. The bill also requires an exempt health care practitioner to obtain prior authorization to provide these services from the applicable licensing board, as defined, and to satisfy other specified requirements, including payment of a fee as determined by the applicable licensing board. The bill requires the applicable licensing board to notify the sponsoring entity, as defined, of the sponsored event whether the board approves or denies a request for authorization to provide these services within 20 days of receipt of the request. The bill also prohibits a contract of liability insurance issued, amended, or renewed on or after January 1, 2011, from excluding coverage of these practitioners or a sponsoring entity for providing care under these provisions.

 

S.B. 953
Signed by governor 7/15/10, Chapter 105
Existing law, the Medical Practice Act, provides for the licensure and regulation of physicians and surgeons by the Medical Board of California and for the licensure and regulation of podiatrists by the California Board of Podiatric Medicine within the Medical Board of California. Existing law exempts a licensee of either of those boards from liability for civil damages for acts or omissions by the licensee in rendering specified emergency care and for injury or death caused in an emergency situation occurring in the licensee's office or a hospital on account of a failure to inform a patient of the possible consequences of a medical procedure, as specified. Existing law prohibits construing these provisions to authorize a podiatrist to act beyond certain scope of practice limitations. This bill deletes that prohibition and states the Legislature's intent regarding that deletion.

 

S.B. 1031
Passed Senate 6/2/10
Creates the Volunteer Insured Physicians Program, administered by the board, to provide specified medical malpractice insurance coverage to volunteer physicians providing uncompensated care to patients pursuant to a contract with a qualified health care entity, as defined. The bill provides funding for the program from the Contingent Fund of the Medical Board of California for a limited period of time. The bill requires annual reports to the Legislature until January 1, 2015.

Colorado

H.B. 1179
Postponed Indefinitely 4/9/10
Allows medical malpractice insurers to discount the medical malpractice insurance rates of licensed physicians who provide primary care services in health professional shortage areas for at least 50 percent of their practice time.

 

H.B. 1224
Signed by governor 6/10/10, Chapter 420
Changes the required minimum levels of liability insurance for podiatrists who perform surgical procedures from $500,000 per claim to $1,000,000 per claim and from $1,500,000 per year for all claims to $3,000,000 per year for all claims.

 

H.B. 1227
Signed by governor 4/15/10, Chapter 130
Current law requires physicians, dentists, and health care institutions to comply with minimum financial responsibility requirements for professional liability insurance coverage as a condition of active licensure or authority to practice in Colorado. The bill clarifies that this financial responsibility requirement may be satisfied by maintaining insurance through approved nonadmitted insurers authorized by law to insure in Colorado.

 

S.B. 124
Signed by governor 6/10/10, Chapter 416
Enacts the Michael Skolnik Medical Transparency Act of 2010; extends similar reporting requirements to specified health care professionals who apply for a new license, certification, or registration or to renew, reinstate, or reactivate a license, certification or registration; requires reporting of malpractice insurance refusal, malpractice judgments, adverse action reporting, fines, training, education and location.

Connecticut

H.B. 5452
Signed by governor 5/5/10, Public Act 10-23
This act allows out-of-state, volunteer health care practitioners to provide health care services in Connecticut at (1) a free clinic or similar charitable medical event providing free health care services or (2) the Special Olympics or similar athletic event attracting a large number of out-of-state participants provided the practitioners meet certain criteria. The practitioner must: 1. hold an unrestricted license or certificate in another state, territory, or the District of Columbia; 2. not represent himself or herself as a Connecticut-licensed or -certified health care practitioner; 3. provide services only to patients or athletes participating in these events; 4. provide only those services permitted by Connecticut law; 5. provide services only under the supervision of a Connecticut-licensed or -certified health care practitioner within the same licensure or certification category; and 6. maintain, either personally or through the sponsoring organization, professional liability insurance or other professional malpractice insurance in an amount equal to or greater than that required for a comparable Connecticut licensee or certificate holder. The act requires the organization conducting such events to ensure that any participating out-of-state practitioner fully complies with its provisions.

 

H.B. 5537
Under existing law, an attorney or claimant cannot file a medical malpractice lawsuit or apportionment complaint unless he or she has made a reasonable inquiry as permitted by the circumstances to determine that grounds exist for a good faith belief that the claimant received negligent medical care or treatment. The complaint or initial pleading must contain a certificate to this effect. To show such good faith, the claimant or attorney must obtain a written, signed opinion from a similar health care provider that there appears to be evidence of medical negligence. This bill modifies these requirements in several respects. Specifically, it: 1. eliminates the requirement that the opinion letter include a detailed basis for the formation of the opinion, instead requiring that it state one or more specific breaches of the prevailing professional standard of care; 2. makes dismissal of the case for failure to obtain the opinion letter discretionary instead of mandatory, provides claimants an opportunity to remedy a failure to file an opinion letter, and establishes a deadline for bringing such a motion to dismiss; 3. broadens the definition of “similar health care provider” for purposes of identifying those qualified to submit an opinion letter; 4. limits the opportunity to raise challenges to the similar health care provider's qualifications by allowing them only after discovery is complete and only as part of a challenge to the validity of the good faith certificate; 5. eliminates use of the opinion letter in actions against health care providers for assault, lack of informed consent, or ordinary negligence unrelated to the rendering of care or treatment; and 6. specifies that the opinion letter must be used for the sole purpose of demonstrating the claimant's reasonable inquiry under the circumstances to determine grounds for a good faith belief that the defendant committed malpractice, and is not to be used to limit allegations in the complaint against any defendant or to limit expert witness testimony.

 

S.B. 222
Failed Joint Favorable deadline 3/29/10
Permits a person who files a complaint with the Department of Public Health alleging incompetence, negligence, fraud or deceit by a health care provider to obtain information about the status of the complaint, notice of any scheduled hearing or proposed consent order with respect to the complaint, and notice of the final disposition of the complaint, and establishes a mediation program for medical malpractice actions.

 

S.B. 248
Signed by governor 6/8/10, Public Act 122
Requires that the Department of Public Health's annual report to the General Assembly on adverse events include information that identifies the hospitals or outpatient surgical facilities where such adverse events occurred, requires the Department of Public Health to conduct annual random audits of hospitals and outpatient surgical facilities concerning adverse events and thereafter include information on such audits in its annual adverse events report, provides employment protections to certain individuals who take action in furtherance of the adverse event reporting objectives, provides the Commissioner of Public Health with authority to impose civil penalties against hospitals and outpatient surgical facilities, and requires that hospitals report annually on the rate of health care associated infections.

 

S.B. 252
Failed Joint Favorable deadline 3/18/10
Add clarifying definitions, expands professional liability insurance closed claim reporting requirements, grants the Insurance commissioner the authority to fine entities that fail to submit reports as required and adds confidentiality provisions in medical malpractice data reports.

 

S.B. 392
Under current law, licensed physicians and surgeons, osteopaths, chiropractors, natureopaths, podiatrists, physical therapists, radiologist assistants, advanced practice registered nurses, dentists, dental hygienists, and optometrists who provide direct patient care services must have professional liability insurance or other indemnity against professional malpractice liability. This bill increases the required minimum coverage amounts from (1) $500,000 to $ 1million per incident per individual and (2) $ 1.5 million to $3 million in the aggregate.

 

S.B. 488
This bill requires licensed doctors and physical therapists to tell current and prospective patients whether they will treat them on the basis of a lawyer's letter of protection. The letter must be written by the patient's personal injury lawyer and promise to either pay the treater's fees from the proceeds of any settlement or judgment or, if there is no recovery or the recovery is insufficient, to have the patient pay.

Delaware

S.B. 223
Passed Senate 6/9/10
Title 18 of the Delaware Code requires that an affidavit of merit be filed under seal when a lawsuit alleging medical malpractice is filed. This affidavit by plaintiff's expert witness is an opinion that the defendant has breached the applicable minimum standard of care and that this breach caused injury to the plaintiff. This amendment removes an existing ambiguity regarding necessary qualifications of an expert who provides this affidavit in cases where the defendant is a health care provider other than a medical doctor, e.g. a hospital or other corporate defendant. The bill also requires that defendants demonstrate good cause whenever requesting judges to review an affidavit of merit.

District of Columbia

B18-71
Passed Congressional review 7/1/10, Law L18-0184
Enacts the Uniform Emergency Volunteer Health Practitioners Act.

Florida

H.B. 791
Died in committee 4/30/10
S.B. 1474
Died in committee 4/30/10
Provides legislative findings and intent; provides that certain emergency health care providers are agents of the state for purposes of sovereign immunity when acting pursuant to specified statutory obligations; requires certain indemnity for state from providers.

 

H.B. 865
Died in committee 4/30/10
Repeals provisions preventing recovery of damages for wrongful death by adult children of decedent or by parents of adult child with respect to claims for medical negligence.

 

H.B. 1529
Died in council 4/30/10
S.B. 2034
Died in committee 4/30/10
Provides that an arbitration agreement for a medical negligence claim that violates specified requirements is voidable at consumer's option until initiation of arbitration; prohibits agreement from restricting or abolishing any substantive or due process right or restricting damages or remedies; requires allowing selection of arbitrators by mutual agreement; requires court to appoint acceptable arbitrators if parties are unable to agree.

 

H.B. 7217
Signed by governor 5/27/10, Chapter 141
Delays repeal of exemption from specified emergency assessments provided for medical malpractice insurance premiums and subjection of such premiums to emergency assessments.

 

S.B. 830
Died in committee 4/30/10
Provides immunity from civil damages to health care providers providing emergency care or medical consultation services. Provides an exception. Provides for severability.

 

S.B. 1606
Died in committee 4/30/10
Repeals a provision that prohibits an adult child of a deceased parent or a parent of a deceased adult child from being awarded damages with respect to a claim for medical negligence.

 

S.B. 2044
Vetoed by governor 6/1/10
Delays the repeal of a provision exempting medical malpractice insurance premiums from emergency assessments to the Hurricane Catastrophe Fund.

 

S.B. 2528
Died in committee 4/30/10
Cites this part as the "Uniform Emergency Volunteer Practitioners Act." Provides for the regulation of specified health services by the Division of Emergency Management of the DCA, in cooperation with the DOH, the AHCA, and the Board of Veterinary Medicine, while an emergency declaration is in effect. Provides limitations on civil liability for volunteer health practitioners.

Georgia

S.B. 315
Passed Senate 2/3/10
Provides for the enactment of the "Uniform Emergency Volunteer Health Practitioners Act.”

 

S.B. 344
Signed by governor 5/20/10, Act 399
Amends the “Health Share' Volunteers in Medicine Act,” so as to provide for sovereign immunity protection for physician assistants in safety net clinics who participate in the program established pursuant to the “Health Share' Volunteers in Medicine Act.”

Guam
Not Available
Hawaii

H.B. 1112
S.B. 930
Signed by governor 5/24/10, Act 134
Provides for medical expenses and immunity from liability for licensed medical personnel providing volunteer medical assistance services on behalf of the State or a county.

 

H.B. 2194
Clarifies telehealth as a practice of medicine. Amends liability insurance provisions to allow for telehealth coverage under medical malpractice insurance.

 

H.B. 2754
Limits non-economic damages in medical tort actions contingent on compliance with premium rate caps by insurers providing professional liability insurance in Hawaii. Sunsets on the earlier of the date on which an insurer does not comply with the premium rate caps, or July 1, 2016. Conforms state tax treatment of health savings accounts to federal tax treatment.

 

S.B. 2491
Vetoed by governor 7/6/10
Requires a study on the inclusion of telehealth services in medical malpractice coverage. Prohibits the department of human services from requiring its approval for Medicaid or QUEST plans to deliver services through telehealth for mobile medical van programs in rural counties.

 

S.C.R. 146
Passed Senate 4/9/10
Requests the convening of a health care reform task force to evaluate methods to improve the quality, safety, efficiency, and cost of Hawaii's health care system, to reduce medical errors and increase patient safety, to seek solutions to eliminate doctor shortages, and to address the role and impact of the legal system in compensating victims injured because of medical errors.

Idaho
none
Illinois

H.B. 1760
Passed House 1/6/11
Creates the Patients' Right to Know Act. Provides for the Department of Financial and Professional Regulation to make available to the public a profile of each licensed physician and chiropractor on an Internet Website or in writing if requested by an individual. Requires on the profiles the full name of the physician, any criminal convictions for felonies and Class A misdemeanors, any Department disciplinary action within the most recent five years, name of medical schools attended and date of attendance and graduation, specialty board certification, the number of years in practice and locations, the name of hospital where physician has privileges, and other requirements. Permits the Disciplinary Board to provide copies of the profiles to the physicians prior to publication and allows 60 days for the physician to correct any inaccuracies. Provides the physician the option to exclude any information concerning academic appointments, teaching responsibilities, publications in peer-reviewed journals, and any professional and community service awards if the physician or chiropractor chooses not to publish such information. Sets any penalties for a violation of this Act to be provided for in the Medical Practice Act of 1987. Repeals similar provisions of the Medical Practice Act of 1987 that were enacted by Public Act 94-677, which has been held unconstitutional.

 

H.B. 5993
Amends the Illinois Insurance Code. Provides that no company writing medical liability insurance in the state shall be required to offer any insured the option to make quarterly premium payments on annual premiums of less than $1,200. Amends the Medical Practice Act of 1987. Repeals a provision that allows for the practice of medicine by a person who is licensed to practice medicine in all of its branches in any other state of the United States or the District of Columbia, who has applied in writing to the Department, in form and substance satisfactory to the Department of Financial and Professional Regulation, for a license to practice under the Act, and has complied with all of the provisions required for licensure except for the passing of an examination, until certain specified events occur. Amends the Code of Civil Procedure. Repeals provisions that set out the requirements for a claim that seeks damages for bodily injuries or death by reason of medical, hospital, or other healing art malpractice and is based upon apparent or ostensible agency.

 

H.B. 6480
Amends the Code of Civil Procedure. Makes a technical change in the section defining medical malpractice action.

 

H.B. 6482
Amends the Code of Civil Procedure. Makes a technical change in a section concerning healing art malpractice.

 

H.B. 6844
Amends the Illinois Insurance Code, the Code of Civil Procedure, and the Good Samaritan Act to reenact certain provisions of Public Act 94-677, which was declared to be unconstitutional. Includes explanatory and validation provisions. Makes changes relating to the reenactment, including revisory changes. Also makes these substantive changes: Amends the Code of Civil Procedure to lower the rate of interest payable on judgments; to provide for annual indexing of those rates; and to delay the accrual of interest in certain cases where a federal Medicare lien may exist against the judgment. Amends the Wrongful Death Act to undo the changes made by Public Act 95-003: removes a reference to certain types of damages that may be included in a jury award and restores certain historic limitations on the amount of damages that may be awarded. Includes an inseverability provision.

 

S.B. 3188
Amends the Illinois Insurance Code. Makes a technical change in a section concerning arbitration of medical malpractice disputes.

 

S.B. 3203
Amends the Code of Civil Procedure. Makes a technical change in the section defining medical malpractice action.

 

S.B. 3328
Amends the Code of Civil Procedure. Makes a technical change in the section defining medical malpractice action.

 

S.B. 3518
Amends the Illinois Insurance Code. Provides that no company writing medical liability insurance in the state shall be required to offer any insured the option to make quarterly premium payments on annual premiums of less than $1,200. Amends the Medical Practice Act of 1987. Repeals a provision that allows for the practice of medicine by a person who is licensed to practice medicine in all of its branches in any other state of the United States or the District of Columbia, who has applied in writing to the Department, in form and substance satisfactory to the Department of Financial and Professional Regulation, for a license to practice under the Act, and has complied with all of the provisions required for licensure except for the passing of an examination, until certain specified events occur. Amends the Code of Civil Procedure. Repeals provisions that set out the requirements for a claim that seeks damages for bodily injuries or death by reason of medical, hospital, or other healing art malpractice and is based upon apparent or ostensible agency.

 

S.B. 3527
Creates the Affordable Health Care Act and amends the Medical Practice Act of 1987. Provides that the Affordable Health Care Act applies to and governs all health care agreements between a patient and a health care provider that (A) voluntarily limit economic damages or non-economic damages arising out of (i) injuries alleged to have been received by a person as the result of medical negligence, or (ii) the death of a person, due to alleged medical negligence of a health care provider or (B) contractually obligate the plaintiff in a medical negligence lawsuit to pay the defendants' reasonable legal fees, including costs and expenses, if the lawsuit fails to establish liability on the part of the defendants. Sets forth conditions to which health care agreements are subject, and requires that such agreements contain a notice to patients. Provides for the termination of health care agreements. Provides that no patient with an emergency medical condition shall be asked to enter into a health care agreement until after stabilization of the patient's condition. Prohibits certain types of threats to health care providers, and makes a violation of those provisions a Class A misdemeanor. Provides that a health care agreement that complies with the Affordable Health Care Act does not violate the provisions of the Medical Practice Act of 1987 concerning certain prohibited contracts or agreements and is not void or against the public policy of the state of Illinois.

 

S.J.R.C.A. 103
Proposes to amend the Legislature Article of the Illinois Constitution. Provides that the General Assembly may determine by statute the limit of liability for all damages and losses other than economic damages of a provider of medical or health care with respect to treatment, lack of treatment, or other claimed departure from an accepted standard of medical or health care or safety that is or is claimed to be a cause of or that contributes or is claimed to contribute to the disease, injury, or death of a person. Requires a majority vote of all the members elected to each house to pass legislation to limit liability on non-economic damages and requires that the legislation cite this section.

Indiana

H.B. 1263
Provides that if: (1) a county adopts an ordinance approving the provision of community fast responder services; and (2) the nonprofit corporation directing the provision of community fast responder services maintains a certain level of insurance; the liability of a community fast responder is limited to the amount of insurance. Provides that the liability of a community responder nonprofit corporation is $300,000. Makes conforming amendments.

Iowa

H.F. 2205
This bill creates the noneconomic damage awards against health care provider Act. The bill provides that in any action for noneconomic damages for injury or death against any health care provider whether based in tort, contract, or otherwise, arising out of an act or omission in connection with the provision of health care services, the injured plaintiff shall be entitled to recover noneconomic damages not to exceed $250,000, except upon a finding of actual malice on the part of the defendant. "Noneconomic damages" is defined as damages arising from pain, suffering, inconvenience, physical impairment, mental anguish, emotional pain and suffering, loss of chance, loss of consortium, and any other nonpecuniary damages. "Health care provider" means a physician defined as a person licensed to practice medicine and surgery, osteopathic medicine and surgery, osteopathy, chiropractic, podiatry, or optometry under the laws of this state pursuant to Code §135.1, an advanced registered nurse practitioner licensed pursuant to Code chapter 152, a hospital defined as a place which is devoted primarily to the maintenance and operation of facilities for the medical diagnosis, treatment, or care over a period exceeding 24 hours of two or more nonrelated individuals pursuant to Code §135B.1, and a health care facility defined as a residential care facility, a nursing facility, an intermediate care facility for persons with mental illness, or an intermediate care facility for persons with mental retardation pursuant to Code §135C.1.

 

S.F. 2005
This bill creates the noneconomic damage awards against health care provider Act. The bill provides that in any action for noneconomic damages for injury or death against any health care provider whether based in tort, contract, or otherwise, arising out of an act or omission in connection with the provision of health care services, the injured plaintiff shall be entitled to recover noneconomic damages not to exceed $250,000, except upon a finding of actual malice on the part of the defendant. "Noneconomic damages" is defined as damages arising from pain, suffering, inconvenience, physical impairment, mental anguish, emotional pain and suffering, loss of chance, loss of consortium, and any other nonpecuniary damages. "Health care provider" means a physician defined as a person licensed to practice medicine and surgery, osteopathic medicine and surgery, osteopathy, chiropractic, podiatry, or optometry under the laws of this state pursuant to Code §135.1, an advanced registered nurse practitioner licensed pursuant to Code chapter 152, a hospital defined as a place which is devoted primarily to the maintenance and operation of facilities for the medical diagnosis, treatment, or care over a period exceeding 24 hours of two or more nonrelated individuals pursuant to Code §135B.1, and a health care facility defined as a residential care facility, a nursing facility, an intermediate care facility for persons with mental illness, or an intermediate care facility for persons with mental retardation pursuant to Code §135C.1.

Kansas
none
Kentucky

H.B. 284
Signed by governor 4/26/10, Chapter 166
Amends KRS 304.40-075 to require requests for medical malpractice premium reimbursements to be submitted no later than one year from the expiration of the policy for which the reimbursement is being requested.

Louisiana

H.B. 175
Increases the medical malpractice cap to $750,000, exclusive of economic losses, loss of earnings, and loss of earning capacity and provides that the cap shall be adjusted annually. Increases the health care provider liability to $150,000.

 

H.B. 264
Signed by governor 6/25/10, Act 568
Adds licensed respiratory therapists, radiologic technologists, and clinical laboratory scientists to the definition of "health care provider" for the purposes of the medical malpractice acts for state and private services.

 

H.B. 394
Passed House 5/4/10
Provides relative to administration of the Patient's Compensation Fund and the composition and authority of the Patient's Compensation Fund Oversight Board.

 

H.B. 427
Provides for procedures and a limitation of liability for health care providers providing services in accordance with the Federal Emergency Medical Treatment and Active Labor Act.

 

H.B. 708
Increases the filing fee for a medical review panel from $100 per named defendant to $500 per named defendant.

 

H.B. 1007
Signed by governor 6/17/10, Act 301
Provides that all of the provisions of the Governmental Claims Act apply to medical malpractice claims except for the limitations on the recovery of damages against the state.

 

H.B. 1018
Signed by governor 6/18/10, Act 398
Provides procedures for medical malpractice claims of prisoners.

 

H.B. 1286
Signed by governor 6/21/10, Act 411
Provides for the placement of the Patient's Compensation Fund and the Patient's Compensation Fund Oversight Board and establishes the fund and board as a nonbudget unit of the state.

 

H.B. 1419
Provides for changes to the membership of the Patient's Compensation Fund Oversight Board and provides for changes relative to the Patient's Compensation Fund.

 

H.B. 1453
Signed by governor 7/2/10, Act 950
Excludes health care providers from coverage under the state and private Medical Malpractice Acts when performing elective abortions.

 

S.B. 443
Withdrawn 5/18/10
Relates to civil actions against health care providers; requires the attachment of an expert report to certain petitions for damages; provides with respect to the content of the expert report; provides with respect to the procedure for filing the expert report and answer to the petition; provides for dismissal of actions for failure to file the report; provides relative to prescription or peremption; repeals provisions of law relative to medical review panels for both state and private claims.

 

S.B. 514
Signed by governor 6/1/10, Act 78
Provides relative to the Patient's Compensation Fund and its administration by the Patient's Compensation Fund Oversight Board.

 

S.B. 726
Relates to medical malpractice; provides relative to limitation of recovery; provides with respect to the amount of costs assessed against a health care provider; provides relative to medical care and related benefits; provides with respect to a special interrogatory given to the jury; provides with respect to actions against the patient's compensation fund.

Maine

L.D. 1574
Signed by governor 4/1/10, Chapter 587
This bill amends the rights and liabilities of military force members to provide immunity to the supervisory physician of a physician assistant regardless of the duty status of the supervisory physician.

Maryland

H.B. 622
S.B. 769
Increases specified limitations on noneconomic damages for a personal injury action and a wrongful death action concerning health care malpractice for a cause of action arising on or after a specified date.

 

H.B. 1157
Decreases a specified limitation on noneconomic damages in health care malpractice claims arising on or after October 1, 2010 to $500,000, with specified annual increases beginning October 1, 2011; makes conforming and stylistic changes.

 

H.B. 1166
Requires periodic payments of specified damages in excess of $100,000 for specified health care malpractice causes of action under specified circumstances; establishes procedures and requirements relating to periodic payments and annuities for funding periodic payments.

 

H.B. 1252
Requires physicians who perform specified services in the state in specified settings to maintain specified minimum amounts of professional liability insurance or attest that the physician has other specified coverage as a condition of licensure and to notify the state Board of Physicians prior to cancellation of the insurance or coverage.

 

H.B. 1253
Requires physicians who perform specified services in the state in specified settings to provide verification or other documentation of professional liability insurance or other specified coverage as a condition of licensure; requires physicians licensed to practice medicine in the state to notify patients in writing and on each visit of specified information relating to professional liability insurance or coverage.

 

S.B. 86
Passed Senate 3/11/10
Authorizes the Department of Public Safety and Correctional Services and local correctional facilities to issue medication and prescriptions under specified circumstances to inmates of a correctional facility as a component of the inmate release process; prohibits the Department, local correctional facilities, and specified persons from being held liable for issuing medication or a prescription on an inmate's release under specified circumstances.

 

S.B. 402
Passed Senate 3/11/10
Requires physicians licensed to practice medicine in the state to notify patients in writing and on each visit of specified information relating to professional liability insurance coverage; requires the notification to be signed by a patient at the time of the patient's visit and retained by a physician as part of the physician's patient records; requires specified physicians to post specified information in their place of practice.

 

S.B. 768
Establishes that discovery in a health care malpractice claim is available on the basis of a report of an attesting expert; specifies the contents of a specified report of an attesting expert under specified circumstances; provides that specified reports are not admissible into evidence in a hearing or a trial for a health care malpractice claim; allows the assertion of specified claims and defenses; and authorizes an extension of time for filing a specified certificate or report under specified circumstances.

Massachusetts

H.B. 1306
Amends the statute of limitation for malpractice complaints for injuries sustained by minors.

 

H.B. 1520
Provides that no physician, physician assistant, or nurse administering immunization or other protective programs under public health programs shall be liable in a civil suit for damages as a result of any act or omission on his part in carrying out his duties. Provides that no physician, physician assistant, or nurse who is registered by the Commonwealth in the Massachusetts System for Advance Registration of Volunteer Health Professionals or its successor entity shall be liable in civil suit for damages for any act or omission on his part related to his voluntary participation in any disaster preparedness or response activity.

 

H.B. 1686
Provides that in the case of a hospital where the tort results in death the liability, in any such cause of action shall not be less than $100,000.

 

H.B. 2028
Provides that any medical professional shall be required to provide immediate parental notification of the impact of medical treatment negligence or error as proximal to the discovery of such negligence or error involving a pediatric or minor patient.

 

H.B. 3629
Establishes a commission to study medical malpractice courts.

 

H.B. 4720
Reduces medical errors and improves patient safety; provides for a medical peer review committee of health care providers; relates to an adverse event, unanticipated outcomes, checklist of care to prevent adverse events and reduce healthcare-associated infection rates, and a facility, hospital, institution maintaining an Intensive Care Unit, institution providing surgical services, or clinic providing ambulatory surgery; provides that a statement of regret does not constitute an admission of liability.

 

H.B. 4862
Reduces medical errors and improves patient safety; provides for a medical peer review committee of health care providers; relates to an adverse event, unanticipated outcomes, checklist of care to prevent adverse events and reduce healthcare-associated infection rates, and a facility, hospital, institution maintaining an Intensive Care Unit, institution providing surgical services, or clinic providing ambulatory surgery; provides that a statement of regret does not constitute an admission of liability.

 

S.B. 483
Requires insurers to report malpractice claims or actions for optometrists.

 

S.B. 500
Relates to medical malpractice self insurance trust funds.

 

S.B. 561
Establishes an Adverse Event Disclosure and Compensation Grant Program for hospitals.

 

S.B. 573
Provides for a fair judgment interest rate for medical malpractice actions.

 

S.B. 574
Relates to malpractice reform; amends definitions for apologies; amends requirements for notice before filing a claim.

 

S.B. 798
Provides, notwithstanding any general or specific law to the contrary, if a registered physician is convicted of three cases of medical malpractice the board shall revoke said physicians registration revoked.

 

S.B. 1615
Provides that no physician or nurse administering immunization or other protective programs under public health programs shall be liable in a civil suit for damages as a result of any act or omission on his part in carrying out his duties. Provides that no physician or nurse who is registered by the Commonwealth in the Massachusetts System for Advance Registration of Volunteer Health Professionals or its successor entity shall be liable in civil suit for damages for any act or omission on his part related to his voluntary participation, or within the course of employment, in any disaster preparedness or response activity.

 

S.B. 1755
Reforms the medical malpractice system, including expert witnesses, several liability and evidence.

 

S.B. 1779
Establishes a Patient Quality and Compensation Commission and pilot project.

 

S.B. 1780
Provides that in any action for malpractice, negligence, error, omission, mistake or the unauthorized rendering of professional services against a provider of health licensed pursuant to §2 of chapter 112, including actions pursuant to section 60B of this chapter, an expert witness shall be board certified in the same specialty as the defendant physician as licensed pursuant to §2 of chapter 112.

 

S.B. 2385
Passed Senate 7/27/10
Provides that, upon the approval of the commissioner, the medical professional mutual insurance company, may for any purposes, including, but not limited to the fixing of separate percentages of dividends under §80 of Chapter 175, consider the business of each category of health care provider as a separate line of business.

 

S.B. 2567
Signed by governor 8/7/2010, Chapter 265
Provides that the commissioner of public health, or his designee, shall study the impact of the Federal Volunteer Protection Act of 1997 and the Free Clinics Federal Tort Claims Act Medical Malpractice Program on health care volunteers in the commonwealth. The commissioner shall also review ways in which the commonwealth may act to provide legal counsel and defense to volunteers who may be eligible for the protections afforded in the Volunteer Protection Act of 1997 or the Free Clinics Federal Tort Claims Act Medical Malpractice Program.

Michigan

H.B. 4829
Revises requirements for immunity for retired health professionals providing medical care at certain health clinics.

 

H.B. 5745
Provides an exception to the cap on damages for medical malpractice actions if the defendant falsifies medical records.

 

H.B. 6163
Provides that a licensed health care professional or a licensed health facility or agency is not liable in an action based on medical malpractice arising out of the provision of emergency medical care in an emergency department or obstetrical unit located in and operated by a hospital, or emergency services provided in a surgical operating room, cardiac catheterization laboratory, or radiology department immediately following the evaluation or treatment of the patient in an emergency department, unless the plaintiff proves by clear and convincing evidence that the licensed health care professional's actions constituted gross negligence that proximately caused the injury to the patient.

 

S.B. 858
Limits liability for medical malpractice for emergency treatment in a hospital.

 

S.B. 1261
Clarifies the limitation on liability for nonemergency health care.

Minnesota
none
Mississippi

H.B. 865
Died in committee 2/2/10
Revises certificate of consultation requirements in medical malpractice actions.

 

S.B. 2298
Died in committee 2/2/10
Amends §41-75-1 to provide that physicians who perform abortions in abortion facilities must be covered by a medical malpractice insurance policy issued by an insurance company licensed to do business in Mississippi.

Missouri

H.B. 1204
Beginning January 1, 2012, this bill requires all insurers providing health care providers with medical malpractice insurance to establish premium rates based on the average judgment awarded in medical malpractice cases during the previous calendar year in the county in which the provider practices. If there were fewer than four medical malpractice judgments made in the county in the previous year, the average of judgments awarded during the previous five years will be used to determine the rates. If there were fewer than four judgments made in the county in the previous five years, the average of all judgments awarded during the previous year in a county of similar population size, diversity of practice, and size and type of provider practice will be used to determine the rates. For providers practicing in more than one county, the rate will be adjusted based on the percentage of the provider's practice conducted in each county.

 

H.B. 1236
This bill establishes the Negligent Screening Act which identifies criteria for medical negligence when an abortion is performed and certain considerations have not been met. Failing to follow the requirements of the act will result in monetary liabilities of $10,000 for each violation, and a wrongful death lawsuit can be filed against the abortion provider for the death of the pregnant woman's unborn child. Civil actions against an abortion provider for violation of the act must be filed within two years of the violation. Violations will not result in grounds for criminal negligence charges or the loss of a person's medical license.

 

H.B. 1650
Adds a specialist; a licensed chiropractor; a licensed health care professional under the direction of a licensed physician or dentist; a 501(c)(3) tax-exempt charitable health care referral network; the professional corporation of a physician organized under Chapter 356, RSMo; any Sexual Assault Forensic Examination Child Abuse Resource Education (SAFE CARE) provider; certain specified free health clinics; certain specified charitable health care referral networks; and any social welfare boards created under §205.770 to the list of health care providers for whom the State Legal Expense Fund is available for the payment of certain claims filed against a provider.

 

H.B. 1671
This bill specifies that any licensed physician who is the medical director of a Special Weapons and Tactics (SWAT) team which has written medical protocols or rendered medical services in the field will be eligible for medical malpractice insurance for the services rendered. The physician or his or her agents or employees acting in their professional capacity will be immune from civil liability for any damages or administrative sanctions for certain specified services but will be liable for damages due to willful or wanton acts or omissions in rendering these services.

 

S.B. 710
This act modifies the law regarding medical malpractice, to wit, 383 malpractice associations. Under the act, any group desiring to provide malpractice insurance for its members shall file a plan of operation or feasibility study with the director (§383.015). The plan of operation or feasibility study shall detail the coverages, deductibles, coverage limits, rates and rating classification systems for the insurance the association intends to offer. The plan shall also include historical and expected loss experience, pro forma financial statements and projections, actuarial opinions regarding the association's solvency, and underwriting claim procedures (§383.015). This act requires 383 associations to maintain a policyholders' surplus of at least $100,000 and requires associations to deposit with the director of the department of insurance cash, bonds or treasury notes in the amount of $100,000 (§383.020). The act removes the prohibition on the Department of Insurance which precluded it from placing limitations on the amount of premium an association can write or on the amount of insurance or liability limit an association can provide. The act authorizes the director to require an association to submit a plan to restore its surplus to at least $100,000 (§383.035). The act requires 383 associations to maintain a specified ratio of premiums written to surplus held. If an association fails to maintain the specified ratio, the director shall order the association to bring its ratio into compliance with the specified standards. If the association fails to comply with the ratio standards for two or more consecutive years, the director may take charge of the association in the same manner as a mutual casualty company (§383.036). The act provides that medical malpractice insurers shall not issue policies in which the director finds, after notice and opportunity for a hearing and based upon competent and substantial evidence on the record as a whole that the base rates of the insurer are excessive, inadequate or unfairly discriminatory.

 

S.B. 951
This act provides coverage under the state legal expense fund for any doctor, therapist, dentist, podiatrist, optometrist, pharmacist, psychologist, or nurse who is hired on a contract basis to serve as a consultant for the MO HealthNet division or family support division of the Department of Social Services, or to serve as a consultant to the Department of Mental Health. The coverage is limited to a maximum of 500,000 dollars for each cause of action. If the professionals covered by the state legal expense fund under this act have additional liability or malpractice insurance, the state legal expense fund is required to pay before the liability or malpractice insurance is available for paying the claim. The Department of Social Services is required to issue rules regarding the contract procedures and documentation of services for such consultants.

Montana
No Regular 2010 Session
Nebraska

L.B. 835
Indefinitely postponed 4/14/10
Increases the information available to the legislature and the public regarding medical malpractice. The bill requires additional information be reported to the Department of Health and Human Services regarding the name and address of the health care provider who rendered the service that is the subject of the claim.

 

L.B. 876
Indefinitely postponed 4/14/10
Changes recovery amounts under the Nebraska Hospital-Medical Liability Act; and repeals the original sections.

Nevada
No Regular 2010 Session
New Hampshire

H.B. 50
Passed House 1/13/10
Repeals the law relative to screening panels for medical injury claims.

 

H.B. 1256
Failed to pass House 3/10/10
This bill restricts medical injury claims subject to pretrial screening panel review to claims exceeding $250,000 in damages.

 

H.B. 1257
Failed to pass Senate 5/5/10
This bill changes requirements for extensions of time for hearings by pretrial screening panels for medical injury claims.

 

H.B. 1258
Failed to pass House 3/3/10
This bill establishes requirements for the award of costs and attorneys’ fees incurred in the medical injury screening panel process.

 

H.B. 1336
This bill limits health care liability claims.

New Jersey

A.B. 260
This bill creates a Special Medical Malpractice Part of the Law Division. The Special Medical Malpractice Part would have jurisdiction with respect to any action for injury against a health care provider based on professional negligence. A "health care provider" is defined as any person licensed in this state to practice medicine and surgery, chiropractic, podiatry, dentistry, optometry, psychology, pharmacy, nursing, physical therapy or as a bioanalytical laboratory director or hospital. The bill defines "professional negligence" as a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the health care provider is licensed and which are not within any restriction imposed by the licensing board or licensed hospital. The Special Medical Malpractice Part would also hear any action concerning disputes surrounding medical malpractice liability insurance. The bill also provides that the Special Medical Malpractice Part would have jurisdiction over disputes where the parties have agreed in writing to such jurisdiction. By establishing a separate part within the Law Division of the Superior Court, this bill eliminates the need for a separate clerk, for example, and for separate facilities. Matters in the Special Medical Malpractice Part would be heard by a judge sitting without a jury.note

 

A.B. 710
The statute of limitations for medical malpractice actions is two years. However, under the discovery rule, the statute is tolled and does not begin to run until the plaintiff knew or, through the exercise of reasonable due diligence should have known, of the injury. The result of this rule is that the tail for medical malpractice liability actions can be virtually infinite. This bill limits the discovery rule and provides that medical malpractice liability actions must be filed within four years of the occurrence of the professional negligence.

 

A.B. 715
This bill establishes procedures for the more expeditious discovery and disposition of medical malpractice claims in order to reduce the costs of litigation, and therefore ultimately, the premiums paid by physicians and other health care providers for medical malpractice liability insurance. Further, the bill establishes certain parameters with respect to proof and liability in medical malpractice actions, also in the interests of affordability and availability of malpractice insurance. The bill requires a person contemplating commencement of an action alleging malpractice to give the health care provider who is alleged to have been negligent in the rendering of professional services written notice of the proposed action at least 180 days before the action is filed. The notice shall contain the factual basis for the claim, the applicable standard of care and the manner in which that standard was breached and all health care providers that the claimant is notifying. Within 60 days of the initial notice, the claimant must allow the health care providers involved access to all medical records related to the claim and in the claimant's control and, likewise, the health care providers must allow the claimant similar access. Not later than 120 days after receipt of the initial notice, the health care provider must respond to the notice stating the basis for the defense of the claim. If at any time during the applicable periods, a health care provider informs the claimant that it does not intend to settle the claim within the notice period, the claimant may immediately file an action alleging medical malpractice, so long as the claim is not otherwise barred by the applicable statute of limitations. "Health care provider" is defined by the bill as any person licensed in this state to practice medicine and surgery, chiropractic, podiatry, dentistry, optometry, psychology, pharmacy, nursing, physical therapy or as a bioanalytical laboratory director, or a hospital or other health care facility or health care agency. "Medical malpractice" is defined as a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the health care provider is licensed and which are not within any restriction imposed by the licensing board or licensed hospital. The bill defines the burdens of proof that the plaintiff in a medical malpractice action must meet; specifically that the defendant, if a general practitioner, failed to provide the plaintiff with the recognized standard of acceptable professional practice or care in the community in which the defendant practices or in a similar community, and that as a proximate result of the defendant failing to provide that standard, the plaintiff suffered an injury; or (2) the defendant, if a specialist, failed to provide the plaintiff with the recognized standard of practice within that specialty as reasonably applied in light of the facilities available in the community or other facilities reasonably available in the community or other facilities reasonably available under the circumstances, and as a proximate result of the defendant failing to provide that standard the plaintiff suffered an injury. In any action alleging medical malpractice, the plaintiff shall have the burden of proving that he suffered an injury that more probably than not was proximately caused by the negligence of the defendant. A plaintiff shall not recover for loss of an opportunity to survive or an opportunity to achieve a better result unless the opportunity is determined to be greater than 50 percent. The bill requires the plaintiff in a medical malpractice action to file an affidavit of merit pursuant to P.L.1995, c.139 (C.2A:53A-26 et seq.) at the same time as the filing of the complaint, contrary to the provisions of that law generally. The defendant shall file an answer to the complaint within 21 days of the filing of the complaint and the affidavit of merit and, within 90 days from that filing date, shall file an affidavit of meritorious defense by a person who the defense believes meets the qualifications for an expert witness as established by the bill. Essentially, to qualify as an expert or execute an affidavit, the bill requires that the individual be in the same type of practice and possess the same certifications, as applicable, as the defendant. Other requirements for expert and scientific opinions are also spelled out in the bill. Under the bill, all actions alleging malpractice must be mediated by a panel of five neutral mediators, which shall include two attorneys, two health care providers licensed by the same board as the defendant and an active or retired judge, selected in a manner determined by the Supreme Court. Procedures for the mediation of the complaint are enumerated in the bill. A party to the mediation is permitted, but not required, to attend. If scars or disfigurement exist, they may be demonstrated, but testimony shall not be taken. The Rules of Evidence will not apply and each side shall be limited to a 15 minute oral presentation. The panel's evaluation of the complaint shall be completed and submitted to the parties in writing within 14 days of the hearing. Each party must file an acceptance or rejection of the evaluation. If all of the parties accept the evaluation, judgment shall be entered in that amount. If any party rejects the evaluation, the action may proceed to trial. Costs and interest are also allocated under the bill according to the outcome of the mediation and evaluation process. Noneconomic damages in medical malpractice actions are limited by the bill to $250,000, unless, as a result of the malpractice, the plaintiff is hemiplegic, paraplegic, or quadriplegic, the plaintiff has permanently impaired cognitive capacity rendering him incapable of independent daily living, or there has been a permanent loss of or damage to a reproductive organ resulting in the inability to procreate, in which case damages for noneconomic loss shall not exceed $500,000. The trier of fact must itemize damages into economic and noneconomic loss. The presiding judge must review each verdict or settlement and set aside any amount of noneconomic damages in excess of the limits specified by the bill. In cases in which the judgment or settlement exceeds $250,000, the bill requires structured settlement of money damages for economic and noneconomic loss. In the case of both this amount, and the limits on noneconomic damages, the Supreme Court shall adjust the amounts annually based on the Consumer Price Index. The bill requires that, in any settled action, the plaintiff and defendant shall jointly file a copy of the settlement agreement with the appropriate professional board in the Division of Consumer Affairs within 30 days of the execution of the agreement. A provision prohibiting retaliation by a health care facility or agency against an employee who reports malpractice or acts as an expert witness in a malpractice action is also included. The bill requires that medical malpractice liability insurers must offer groups of 50 or more physicians medical malpractice liability insurance policies with a deductible in amounts of at least $50,000 per occurrence and up to $1,000,000 per occurrence. The deductible amount may be treated as a self-insured retention, using a third party administrator approved by the commissioner, or using the medical malpractice liability insurer as a third party administrator on an administrative-services-only basis. The bill also requires that insurers offer deductibles to individual physicians and practice groups, with a commensurate reduction in premium. The bill also prohibits a medical malpractice liability insurer from increasing the premium of an insured for a medical malpractice liability claim unless that claim results in a medical malpractice claim settlement, judgment or arbitration award against the insured. The statute of limitations for medical malpractice actions under current law is two years. However, under the discovery rule, the statute is tolled and does not begin to run until the plaintiff knew or, through the exercise of reasonable due diligence should have known, of the injury. The result of this rule is that the tail for medical malpractice liability actions can be virtually infinite. The bill creates two separate statutes of limitations, both of which must be satisfied if a plaintiff is to timely file a medical malpractice action. The action must be brought within one year after the injured party first suffered appreciable harm and suspected, or a reasonable person would have suspected, that someone had done something wrong. The bill also provides that no action may be brought more than three years after the plaintiff first suffered appreciable harm. Either period can be tolled by fraud, intentional concealment or the presence of a foreign object in the patient's body. However, if the injured party was less than two years old when appreciable harm was first suffered, the action must be brought within seven years after the harm. In addition to the other reasons the provisions of the bill may be tolled, the minor's limitations period is tolled if the parent or guardian and the health care provider or malpractice insurer have committed fraud or collusion.

 

A.B. 1021
This bill revises the approval process for rate changes applicable to medical malpractice liability insurance. Under the bill, the commissioner of Banking and Insurance shall prescribe by regulation a designated range of annual rate change, which shall be an increase or decrease of between not less than five percent and not more than 15 percent. The commissioner may also determine, pursuant to regulation, the categories, subcategories, specialties, and subspecialties of health care provider to which the application of the designated range shall apply. Any rate, supplementary rate information, or change or amendment thereof, filed by an insurer or rating organization which proposes a rate change within this designated range shall become effective not less than 30 days after the filing. However, notwithstanding this arrangement, only one filing by an insurer or rating organization of a proposed rate change within the designated range may take effect within any 12-month period without the express approval of the commissioner. Any filing by an insurer or rating organization proposing a rate change which exceeds the designated range, or proposing an additional rate change within this range during any 12-month period, shall be subject to prior approval by the commissioner pursuant to section 14 of P.L.1944, c.27 (C.17:29A-14) before becoming effective. Based on the revision of the rate change approval process by the bill, medical malpractice liability insurance risks producing an annual premium in excess of $10,000 shall no longer be automatically deemed a “special risk” subject to the “special risk” rate approval process set forth under section 12 of P.L.1982, c.114 (C.17:29AA-12). Instead, the provisions of the bill shall apply to any filing on medical malpractice liability insurance risks for a rate change.

 

A.B. 1367
S.B. 610
This bill limits the liability of health care providers to an injured plaintiff for pain and suffering, also known as noneconomic damages, to $250,000.

 

A.B. 1392
Signed by governor 11/12/10, Chapter 88
S.B. 1526
Substituted 9/30/10
Includes midwives within definition of "licensed person" for purposes of affidavits of merit in certain actions filed on or after effective date.

 

A.B. 1806
S.B. 1844
This bill establishes limits on noneconomic loss for damages received in a medical malpractice action based upon newly defined categories concerning the nature and seriousness of the underlying injury. In any action for damages alleging medical malpractice by or against a health care provider, the total amount of damages for noneconomic loss recoverable by a plaintiff in which the negligence of a defendant or defendants, jointly and severally, is found to be the proximate cause of an injury, shall not exceed $100,000 or three times the amount of economic loss, whichever is less. Recovery for noneconomic loss shall not exceed $500,000 or three times the amount of economic loss, whichever is less if, in any action in which the negligence of a defendant or defendants, jointly and severally, is found to be the proximate cause of: (a) severe chronic and permanent disability which is expected to give rise to a long-term need for specialized health, social, and other services and which makes the person with such a disability dependent upon others for assistance to secure those services; or (b) an injury resulting in blindness, permanent loss of a significant bodily function or system; or (c) loss of a body member, significant and permanent malformation, significant scarring, or significant and permanent disfigurement that cannot be substantially remediated by medical or surgical treatment; or (d) any degree of permanent paralysis other than paraplegia or quadriplegia; or (e) there has been permanent loss of or damage to a reproductive organ resulting in the inability to procreate. Recovery for noneconomic loss shall not exceed $750,000 or three times the amount of economic loss, whichever is less for any action in which the negligence of a defendant or defendants, jointly and severally, is found to be the proximate cause of: (a) the plaintiff being rendered hemiplegic, paraplegic, or quadriplegic; or (b) the total and permanent functional loss of one or more limbs caused by injury to the brain or injury to the spinal cord, or both; or (c) the plaintiff has permanently and significantly impaired cognitive capacity rendering him incapable of making independent, responsible life decisions and permanently incapable of independently performing the activities of normal, daily living, or (d) death. Under the bill, no insurer writing medical malpractice insurance and no person insured under a policy of medical malpractice insurance will be liable for the payment of any damages for noneconomic loss in excess of the amounts provided for in the bill.

 

A.B. 1982
S.B. 760
The bill provides for various revisions to the laws governing lawsuits and insurance coverage for medical malpractice. The bill also provides that a malpractice action against a health care provider shall be commenced within two years after the plaintiff or patient discovers, or through the use of reasonable diligence should have discovered, the injury, but not more than four years after the date of the alleged act, omission, neglect or occurrence that is the basis of the action, except that in the case in which the allegation of malpractice against the health care provider is that a foreign object has been wrongfully left within a patient’s body, the claim shall be barred unless commenced within one year after the plaintiff or patient discovers, or through the use of reasonable diligence should have discovered, the existence of the foreign object wrongfully left in the patient’s body, whichever first occurs. The bill also revises the requirements for an affidavit by an appropriately licensed person to be provided by a plaintiff in certain negligence and malpractice actions, by further requiring that the affidavit state that the care, skill or knowledge used in the treatment, practice or work that is the subject of the complaint did not meet a commonly recognized reasonable standard of care. In the case of an action for medical malpractice, the affidavit shall further: (1) establish that there was a provider-patient relationship and identify the specific act by the defendant which is the basis for the cause of action against the defendant, or, if there was no provider-patient relationship, identify the specific act by the defendant which is the basis for the cause of action against the defendant; and (2) be based on and refer to objective scientific clinical evidence. The person executing the affidavit shall include in the affidavit a certification, under penalty of perjury, that the patient’s chart and other pertinent information submitted has been personally reviewed. A person shall be guilty of a crime of the fourth degree if the person purposefully or knowingly makes, or causes to be made, a false, fictitious, fraudulent, or misleading statement of material fact in, or omits a material fact from, or causes a material fact to be omitted from, any such affidavit. The bill also provides that in an action alleging medical malpractice, a person shall not give expert testimony or execute an affidavit pursuant to the provisions of P.L.1995, c.139 (C.2A:53A-26 et seq.) on the appropriate standard of practice or care unless the person is licensed as a physician or other health care professional in New Jersey, as opposed to the current requirement that the physician or professional be licensed in the United States, provided however, that a court may waive the requirement that a person providing testimony as an expert witness be licensed in New Jersey upon sufficient evidence that no person licensed in New Jersey meets the qualifications set forth in section 7 of P.L.2004, c.17 (2A:53A-41). The bill further provides, with respect to medical malpractice actions, that expert testimony shall be based on and reference objective scientific clinical evidence, as defined in the bill. A person testifying as an expert witness in such an action shall be guilty of a crime of the fourth degree, and shall be forever barred from presenting expert testimony in this state if the person purposefully or knowingly makes, or causes to be made, a false, fictitious, fraudulent, or misleading statement of material fact in, or omits a material fact from, or causes a material fact to be omitted from, any expert testimony. The bill also provides that an insurer shall not increase the premium of any medical malpractice liability insurance policy based on a claim of medical negligence or malpractice against an insured unless the claim, as defined in the bill, results in a medical malpractice claim settlement, judgment or arbitration award against the insured. The bill also prohibits an insurer from increasing medical malpractice insurance premiums, if the alleged malpractice occurred in certain charitable or emergency situations. The bill also provides that every claim or demand filed against an insured for damages in excess of $100,000 per occurrence for economic loss and non-economic loss shall document the economic loss for which relief is sought and shall set forth in detail the economic loss incurred at the time the case is subject to a complementary dispute resolution proceeding, at the time settlement negotiations are entered into, or at the time a case is tried, as well as a detailed statement of claimed prospective economic loss resulting from the allegation of medical malpractice, which documentation shall be updated from time to time as necessary and shall be provided to the court, the complementary dispute resolution agent or, in the case of settlement, the defendant, as applicable. The bill also provides, that in every trial in which damages are awarded in an action alleging medical malpractice, the trier of fact shall separately itemize damages awarded for economic loss and damages awarded for non-economic loss and the judge presiding over the proceeding shall review each verdict to determine pursuant to section 9 of P.L.2004, c.17 (C.2A:53A-42), whether the award is clearly inadequate, excessive, or disproportionate in view of the nature of the medical condition or injury that is the cause of action or because of passion or prejudice by the jury. The bill also provides that it shall be presumed that a person who signs an informed consent form or document for a medical procedure or other form of health care has read that form or document. The bill also provides that if an attorney representing a plaintiff in a medical malpractice action files the complaint using fictitious names for one or more persons who may be determined to be parties to the action but whose role is unknown at the time of the filing of the complaint, there shall be no time limitation within which the attorney may substitute the name of any person or persons for a fictitious name nor any other bar to such substitution if the person or persons are subsequently determined to be joined as a party to the action. Finally, the bill provides that a physician licensed to practice medicine in this state shall not be liable for civil damages as a result of any act or omission in connection with the rendering of any treatment or procedure for illness or injury if the treatment or procedure is rendered while the physician is performing the treatment or procedure as a volunteer, in good faith and without consideration, at a clinic, other health care facility, or any other location where the treatment or procedure is being rendered.

 

A.B. 1990
S.B. 1933
This bill provides immunity from civil liability to certain retired physicians providing patient care or treatment at nonprofit free-standing clinics and federally qualified health centers (FQHCs) on a volunteer basis, and also provides immunity to these clinics and FQHCs with respect to the care or treatment provided by the physicians. The bill provides specifically as follows: A volunteer physician, who provides patient care or treatment to patients at a nonprofit free-standing clinic that is not owned or controlled by a licensed health care facility or at a FQHC, and the clinic or FQHC and its trustees, directors, officers, employees, agents, and volunteers, as applicable, are immune from civil liability for personal injury, if the care or treatment was reasonably provided in good faith. No immunity, however, is to be provided for gross negligence or willful or wanton misconduct or the negligent operation of a motor vehicle. The bill defines “volunteer physician” to mean a retired physician who remains licensed pursuant to chapter 9 of Title 45 of the Revised Statutes at the time he provides care or treatment pursuant to this bill and whose professional practice is limited to providing patient care or treatment exclusively without compensation or the expectation or promise of compensation. A patient and the volunteer physician must agree to the provision of uncompensated patient care or treatment and the immunity granted under the bill prior to the rendering of the patient care or treatment.

 

A.B. 1998
This bill tightens the standards and requirements for expert witnesses in actions involving medical malpractice and amends N.J.S.A.2A:53A-41, which sets forth the standards for expert witnesses. The bill makes the following changes to the expert witness requirements: the bill deletes the option that an expert witness for a specialist or subspecialist would be qualified to give testimony if the person is either a hospital-credentialed physician or a board certified specialist or subspecialist in the same specialty or subspecialty and requires, instead, that the person be both hospital-credentialed and board certified; the bill deletes the option that an expert witness for a specialist or subspecialist would be qualified to give testimony if the person devotes a majority of his professional time to the instruction of students in an accredited medical school, other accredited health professional school or accredited residency or clinical research program in the same health care profession in which the defendant is licensed and requires, instead, that the person devote a majority of his professional time to the active clinical practice of the same health care profession in which the defendant is licensed; and regarding the court's option to waive the same specialty or subspecialty requirement for an expert witness, the bill provides that the waiver shall be granted if the court determines that: (1) the expert specializes in a substantially similar speciality or subspecialty that includes the evaluation, diagnosis or treatment of the medical condition that is the subject of the claim or action and has prior clinical experience treating similar patients; (2) if the party against whom or on whose behalf the testimony is offered is board certified in a speciality or subspecialty, the expert is certified by a board recognized by the American Board of Medical Specialties or the American Osteopathic Association in a specialty or subspecialty having acknowledged expertise and training directly related to the particular health care matter at issue; (3) the expert has devoted a majority of his professional time during the five years immediately preceding the date of the occurrence that is the basis for the claim or action to the active clinical practice of the same or a substantially similar specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association; and (4) the expert has demonstrated to the satisfaction of the court both that the standards of care and practice in the two specialties or subspecialties are similar and that the expert has substantial familiarity between the specialties or subspecialties.

 

A.B. 2807
S.B. 949
This bill extends the Medical Malpractice Liability Insurance Premium Assistance Fund for five years and reestablishes the collection of annual surcharges for the fund for the five-year period. The primary purpose of the fund is to provide medical malpractice liability insurance premium subsidies to health care providers who, as a class of providers, are most severely impacted by high medical malpractice premium rates. In addition, monies from the fund are allocated for various health care purposes, including funds: to the Health Care Subsidy Fund for charity care subsidies to hospitals, to the NJ FamilyCare Program, and to provide student loan expense reimbursement for certain obstetrician/gynecologists. The surcharges apply to all employers subject to the “unemployment compensation law,” ($3 per employee each year), and to practicing physicians, podiatrists, chiropractors, dentists, optometrists, and attorneys licensed in this state ($75 each year).The bill repeals sections 29 and 30 of P.L.2004, c.17.

 

A.B. 3051
This bill, which is designated the “Medical Philanthropy Act,” seeks to encourage physicians to provide their professional services without receiving compensation to more than 10 percent of their patients. In return for the provision of uncompensated care and treatment, the bill establishes a $250,000 cap on noneconomic damages for a physician’s entire professional medical practice. With a limited malpractice liability risk, the physician will be subject to a reduced medical malpractice insurance premium. Specifically, the bill provides that a physician licensed to practice in this state who provides care or treatment to at least 10 percent of the physician’s patients in a calendar year without receiving any compensation for that care or treatment, shall not be liable in any action for noneconomic damages alleging medical malpractice against that physician in an amount that exceeds $250,000. The $250,000 limit shall apply to cases arising out of care or treatment provided by the physician during the calendar year for which the physician qualifies for the $250,000 limit. The commissioner of Health and Senior Services is directed to adopt rules and regulations that establish procedures for: (i) physicians to report, document, and certify the uncompensated care and treatment provided in a calendar year and the total number of patients who received care and treatment from the physician during that year; (ii) the department to verify that the reported uncompensated care and treatment was provided to more than 10 percent of the physician’s patients; and (iii) the department to notify the physician and the Department of Banking and Insurance that the physician qualifies for the medical malpractice insurance limit. Upon receipt of notification from the Department of Health and Senior Services, the physician may submit the notification to the physician’s medical malpractice insurer and inform the insurer that the physician is subject to a limit of $250,000 in noneconomic damages for the calendar year.

 

S.B. 524
This bill establishes a Medical Malpractice Court as a court of limited jurisdiction similar to the current Tax Court. The Medical Malpractice Court would have jurisdiction with respect to: (1) any dispute concerning medical malpractice liability insurance; (2) any action where the parties have agreed in writing that any matter arising out of the agreement would be resolved in Medical Malpractice Court; (3) any action for injury against a health care provider based on negligence; (4) any other medical malpractice dispute as provided by the Rules of the Supreme Court; (5) any action cognizable in the Superior Court which raise issues as to which judicial expertise in matters involving medical malpractice is desirable, which are not within the jurisdiction of the Chancery Division of the Superior Court, and which have been transferred to the Medical Malpractice Court pursuant to the Rules of the Supreme Court; or (6) any other matters as may be provided by statute. The governor would nominate and appoint, with the advice and consent of the Senate, the judges of the Medical Malpractice Court. The court would consist of not less than six judges and not more than 12 judges. The judges of this court would be required have been admitted to the practice of law in this state for at least 10 years prior to appointment. Judges of the Medical Malpractice Court would hold their offices for initial terms of seven years and until their successors are appointed and qualified, and upon reappointment would hold their offices during good behavior. The judges would be required to retire at the age of 70 years, upon the same terms and conditions as judges of the Superior Court, and would have the same pension rights and other benefits as judges of the Superior Court. Each judge would receive an annual compensation and other benefits equal to that of a judge of the Superior Court. The judges would be subject to impeachment and removal from office by the Supreme Court as is provided by law. The chief justice would assign one of the judges of the Medical Malpractice Court to be the presiding judge. The presiding judge would, subject to the supervision of the chief justice and the administrative director of the courts, be responsible for the administration of the court.

 

S.B. 1785
This bill provides that physicians shall only be liable for professional negligence to the extent of the medical malpractice insurance they are required to carry under current law.

New Mexico

H.B. 60
Relates to medical malpractice; amends the medical malpractice act to clarify the definition of "health care provider."

New York

A.B. 1254
S.B. 1514
Enacting clause stricken 2/23/10
Prohibits interviews of other party's treating physicians or health care providers in personal injury medical, dental, or podiatric malpractice or wrongful death actions.

 

A.B. 1725
Passed Assembly 2/8/10
Provides that an affirmation of a health care practitioner may be served or filed in an action in lieu of and with same force and effect as an affidavit (changes the current reference in existing provisions from "physician, osteopath or dentist" to "health care practitioner").

 

A.B. 4627
S.B. 1729
Alters the statute of limitations for medical, dental or podiatric malpractice to two years and six months from the time when a person knows or reasonably should have known of the alleged negligent act or omission and knows or reasonably should have known that such negligent act or omission has caused an injury; revives previously dismissed medical, dental and podiatric malpractice actions for a one year period.

 

A.B. 4656
S.B. 8347
Passed Senate 6/30/10
Provides for the certification of and qualifications for dentists practicing oral and maxillofacial surgery; provides that in an oral and maxillofacial surgery malpractice action, only a physician may be called as an expert witness at trial.

 

A.B. 6184
S.B. 6799
Enacts the "medical liability reform act"; requires attorney for plaintiff in a medical, dental or podiatric malpractice case to include with the certificate of merit, an affidavit of an appropriate medical professional licensed in this state stating that there is a reasonable basis for such malpractice action; failure to file will result in dismissal; modifies limited liability of persons jointly liable; limits noneconomic damages in such causes of action to $250,000; requires enhanced and comprehensive disclosure of expert witnesses to be used by any party in medical, dental and podiatric malpractice cases.

 

A.B. 6514
S.B. 7159
Relates to the use of expert medical testimony; creates the health care courts pilot program; creates a new element of professional misconduct for providing expert witness testimony that is without reasonable medical foundation.

 

A.B. 8964
Enacting clause stricken 1/27/10
S.B. 3203
Prohibits interviews of other party's treating physicians or health care providers in personal injury medical, dental, or podiatric malpractice or wrongful death actions.

 

A.B. 10592
Relates to the time to commence certain medical malpractice actions; provides that actions related to acts or omissions of hospitals where an incident report is required to be filed may be filed within one year of the required filing.

 

A.B. 11204
Provides that notwithstanding the provisions of the public health law, no other fee other than those authorized by §2303 (a) of the civil practice law and rules may be exacted or levied for the production of records relating to the condition or treatment of a patient; relates to access by an adverse party to medical records.

 

A.B. 11542
S.B. 8274
Establishes a physicians and surgeons data collection and advisory association to compile physicians and surgeons medical malpractice exposure, loss and expense statistics related to medical malpractice insurance; provides that such advisory association will have a governing body that will charge insurers for services; establishes a medical malpractice insurance fund.

 

S.B. 6744
Enacts the New York Birth-Related Neurological Injury Compensation Act; provides a program whereby families of infants who are neurologically injured at birth would have an option for compensation other than by suing the physician.

 

S.B. 7692
Establishes new element for professional misconduct for providing expert witness testimony without reasonable medical foundation.

 

S.B. 7693
Establishes the health care courts pilot program.

 

S.B. 8074
Provides medical malpractice insurance premium discounts for physicians and hospitals for utilization of certain electronic health record technology.

North Carolina
none
North Dakota
No Regular 2010 Session
Ohio

S.B. 86
Passed Senate 5/19/10
Grants qualified civil immunity to a physician who provides emergency medical services, first-aid treatment, or other emergency professional care in compliance with the federal Emergency Medical Treatment and Active Labor Act or as a result of a disaster.

Oklahoma

H.B. 1658
Signed by governor 6/5/10, Chapter 294
Relates to torts; provides that any physician or health care provider providing health care services in a volunteer capacity at a secondary school function who renders care to an injured participant in need of immediate medical aid is not liable for damages as a result of any acts or omissions except for committing gross negligence or willful or wanton negligence in rendering the emergency care.

 

H.B. 2570
Relates to damages; relates to damages for claimed bodily injury; eliminates certain expression of legislative intent; prohibits the Legislature from appropriating funds for the purpose of reinsurance to cover judgments through the Health Care Indemnity Fund.

 

H.B. 2853
Relates to professions and occupations; relates to prescriptions; directs certain information to be placed on a prescription label in certain circumstance; requires certain persons to provide specified information; provides exceptions; prohibits certain act from being admissible evidence of malpractice in litigation.

 

H.B. 3094
Relates to professions and occupations; relates to prescriptions; directs certain information to be placed on a prescription label in certain circumstance; requires certain persons to provide specified information; provides exceptions; prohibits certain act from being admissible evidence of malpractice in litigation.

 

H.B. 3367
Relates to torts; creates the Quality of Life Act; prohibits patient from bringing suit against physician if patient declined procedure.

 

S.B. 1837
Relates to torts; relates to access to medical records; allows certain persons to access specified records; establishes costs for records provided in certain form.

 

S.B. 2163
Vetoed by governor 6/11/10
Creates the Health Care Indemnity Trust Fund and a Board of Trustees for the fund; provides that earnings from the fund shall be expended to pay a portion of damages awarded and approved by the district court in professional negligence cases against physicians in the state; requires the Board to develop rules to request and review bids for insurance coverage required for the operation of the fund.

Oregon

S.J.R. 46, Special Session
Proposes amendment to Oregon Constitution to limit awards of noneconomic damages against health care providers, nonprofit corporations and public bodies to $1 million. Refers proposed amendment to people for their approval or rejection at next regular general election.

Pennsylvania

H.B. 255
Requires an individual licensed to practice prosthetics, orthotics, pedorthics or orthotic fitting in this commonwealth to maintain a level of professional liability insurance coverage in the minimum amount of $1 million per occurrence or claims made and shall verify to the Board the required coverage. Failure to maintain insurance coverage as required shall subject the licensee to disciplinary proceedings.

 

H.B. 1764
Passed House 6/21/10
Requires that an acupuncturist shall obtain and maintain, to the satisfaction of the board, professional liability insurance coverage in the minimum amount of $1 million per occurrence or claims made.

 

H.B. 2368
Passed House 6/15/10
Regulates medical professional liability insurance.

 

H.B. 2544
Further provides for medical professional liability insurance, for Medical Care Availability and Reduction of Error Fund and for actuarial data.

 

S.B. 1280
Vetoed by governor 10/22/10
Further provides for medical professional liability insurance, for Medical Care Availability and Reduction of Error Fund and for actuarial data.

 

S.B. 1448
Amends the Volunteer Health Services Act. Provides for volunteer license and for liability. Requires reports. Establishes a procedure through which physicians and other health care practitioners, including physicians and other health care practitioners who are retired from active practice, may provide professional services as a volunteer in approved clinics serving financially qualified persons and in approved clinics in medically underserved areas or health professionals shortage areas.

 

S.B. 1497
Amends Title 42 (Judiciary and Judicial Procedure) of the Pennsylvania Consolidated Statutes, adding and changing definitions; further provides for the unified judicial system; establishes the appellate division of the Medical Professional Liability Court; provides for transfers between intermediate appellate courts, for lien of judgments for money, for direct appeals to the Supreme Court from courts of common pleas, for allowance of appeals from Superior Court and Commonwealth Court, for appeals to Superior Court from courts of common pleas, for original jurisdiction of the Commonwealth Court, for appeals to the Commonwealth Court from courts of common pleas, for the jurisdiction of the appellate division of the Medical Professional Liability Court and for the organization and jurisdiction of the Medical Professional Liability Court; establishes the Medical Professional Liability Qualifications Commission and prescribes its powers and duties; further provides for selection of judicial officers, for vacancies in judicial offices and for retention election of judicial officers; provides for selection and retention of judges of the Medical Professional Liability Court and for salaries of judges of the Medical Professional Liability Court; establishes the Medical Professional Liability Court Fund and provides for receipts and payments; and further provides for right to appellate review and for appeals generally.

 

S.R. 362
Directing the Legislative Budget and Finance Committee to conduct a study of the Medical Care Availability and Reduction of Error Fund administered by the Insurance Department to ascertain its policies and procedures to ensure the availability and accessibility of affordable medical professional liability coverage.

Puerto Rico

H.B. 2534
Passed House 6/25/10
Amends the Insurance Code to provide that all health care professionals that provide medical services to patients of the State Insurance Fund shall be exempt from lawsuits and that the risk shall fall on the State Insurance Fund.

 

H.B. 2686
Passed House 6/24/10
Amends Act No. 104 of 1955; corrects the text of the application and restores the limits of liability for medical malpractice; provides that this amendment shall apply to the Corporation of the State Insurance Fund for Industrial Hospital and professional medical staff working at these government agencies.

 

H.B. 2719
Amends the Insurance Code of Puerto Rico including certain aspects of professional liability and institutional practice of medicine in Puerto Rico.

 

H.R. 1121
Orders the Committee of Government and Health Committee of the House of Representatives to conduct an inquiry on the performance of the Board of Medical Licensure and Discipline j including the degree of agility and diligence in handling and processing of complaints made against doctors, malpractice judgments in cases that are notified and disciplinary action taken, the suitability of the legal system and regulations that are applicable.

 

S.B. 1609
Amends the Insurance Code of Puerto Rico for the establishment of health services, medical liability access to professional medical and surgical services.

 

S.B. 1921
Amends the Insurance Code of Puerto Rico, Law No. 77 of June 19, 1957, as amended, with respect to the the aim of including the Corporation Research Center, Education and Medical Services for Diabetes within the limits of liability for medical and hospital malpractice that are subject to the Commonwealth of Puerto Rico.

 

S.B. 1935
Amends Act 77 of 1957 known as the Insurance Code in order to include officers, agents and consultants within professional health who do not have to file proof of financial responsibility; amends Law 104 of 1955 on Claims and Demands Against the State in order to include the Mayaguez Trauma Center within medical facilities to limit liability in cases for damages.

Rhode Island

H.B. 7493
This act grants immunity from liability for gratuitous emergency assistance to state-licensed and federally-credentialed physician assistants, and allows physician assistants to participate in disaster and emergency care with any available physician supervision or without physician supervision if none is available.

 

H.B. 7525
This act creates specific procedures applicable to medical liability claims requiring a preliminary hearing and determination before the superior court.

 

H.B. 7647
Passed House 5/4/10
This act requires a list of all settlements or judgments against all licensed health care professionals and nursing homes be reported to the director of health. It also provides parameters within which the director of health may establish regulations for malpractice minimums.

 

H.B. 7710
This act transfers the professional liability insurance reporting requirement for healthcare professionals and nursing homes to the department of health. This act also increases the limits of malpractice insurance coverage requirements for health care professionals.

 

S.B. 2420
This act removes the allowance for “graduate practice” status for physician assistants, would grant immunity from liability for gratuitous emergency assistance to state-licensed and federally-credentialed physician assistants, and allows physician assistants to participate in disaster and emergency care with any available physician supervision or without physician supervision if none is available.

 

S.B. 2458
Requires the Department of Health to provide an analysis of medical malpractice insurance rates and to recommend improvements to the Legislature.

South Carolina

H.B. 4453
Enacts the "Physician Transparency Act" by adding Article 3, to Chapter 47, Title 40 so as to require physicians seeking licensure to submit information pertaining to, among other things, prior licenses held, disciplinary action taken against the physician, any agreement to temporarily cease or restrict the physician's practice of medicine, actions affecting clinical privileges, criminal convictions, and final judgments or settlements resulting from a malpractice action; requires the Board of Medical Examiners to make this information and types of complaints filed against a physician available to the public on the Board's Web site; provides that failure to provide this information or providing false information is considered misconduct and the Board may not issue, renew, or reinstate the license of the physician; provides that all hearings before the Board regarding complaints against physicians must be open to the public, that hearing schedules must be posted on the Board's Web site, that a complainant has the right to make a public statement in a hearing before the Board, and that the Board shall inform a complainant of these rights.

 

S.B. 168
Signed by governor 5/11/10, Act 153
Amends §38-79-30, Code of Laws of South Carolina, 1976, relating to medical malpractice insurance so as to provide that a licensed health care provider who renders medical services voluntarily and without compensation, and seeks no reimbursement from charitable and governmental sources, and provides notice to the patient or patient's provider in a non-emergency, is not liable for any civil damages for any act or omission unless the act or omission was the result of the health care provider's gross negligence or willful misconduct.

South Dakota

H.B. 1068
Revises the limitation on damages for medical malpractice actions.

Tennessee

H.B. 289
S.B. 76
Withdrawn 3/24/10
Changes the term for medical malpractice lawsuits to "health care liability action." A health care liability action would include any lawsuit alleging injury related to the provision or failure to provide health care services, which names as a defendant a health care provider, health care facility, or employee of a health care provider. This bill specifies that victims of medical malpractice may be awarded damages for noneconomic losses, but such damages would be limited to $250,000 against all health care providers who are defendants and $250,000 against all health care facilities that are defendants. The maximum aggregate amount of noneconomic damages that a plaintiff could recover would be $500,000, and the $500,000 limit would apply in the aggregate to all claims arising from the same injury, regardless of the number of claims, claimants, plaintiffs, or beneficiaries. Under this bill, punitive damages would be considered noneconomic damages. This bill authorizes the trial court in a medical malpractice case, at the request of either party, to enter a judgment ordering that money damages or its equivalent for future damages be paid in whole or in part by periodic payments rather than by a lump-sum payment if the award equals or exceeds $75,000 in future damages. Periodic payments for future damages would only be subject to modification in the event of the death of the victim. Money damages awarded would not be reduced or payments terminated by reason of the death of the victim, but would be paid to persons to whom the victim owed a duty of support immediately prior to the victim's death. This bill does not prohibit the parties to a health care liability action, in a settlement, from agreeing to the satisfaction of the award by future periodic payments subject to court approval. This bill limits the bond that a health care provider is required to post to stay execution of a judgment pending appeal to a maximum of $1,000,000. This bill sets four limitation ranges on the amount of attorney's fees that may be awarded in medical malpractice cases. Rather than limiting the amount to 33 1/3 percent, the amount of attorney's fees would not exceed: (1) 40 percent of the first $50,000 of damages recovered; (2) 33 1/3 percent of the next $50,000 recovered; (3) 25 percent of the next $500,000 recovered; and (4) 15 percent of any amount on which the recovery exceeds $600,000. Under present law, in order for a health care professional to testify in a medical malpractice case regarding the applicable standard of care and whether the defendant's deviation from the standard of care was the proximate cause of the plaintiff's injury, the professional must be licensed to practice in this state or a contiguous bordering state in a profession or specialty that makes the person's expert testimony relevant to the issues in the case and must have practiced this profession or specialty in one of these states during the year preceding the date that the alleged injury or wrongful act occurred. This bill adds that in order to testify as described above the professional must be licensed in the same specialty as the defendant for purposes of testifying to the standard of care in the specialty and the existence of a deviation from the standard of care. This bill requires the plaintiff in a health care liability action to state a demand for a specific sum, which would not be disclosed to the jury during the trial. This bill also specifies that in any health care liability case where the award of damages exceeds the sum demanded in the complaint, the plaintiff's attorney would not be liable for legal malpractice solely because of the judgment exceeding the demand, unless the attorney acted fraudulently or engaged in willful misconduct with regard to making the demand. This bill requires the plaintiff in any professional negligence action against a health care provider to file contemporaneously with the complaint a HIPPA-compliant medical release that will allow the defendant's attorney to obtain all health care information, including mental health and drug and alcohol treatment records, pertaining to the plaintiff.

 

H.B. 837
Withdrawn 1/27/10
S.B. 488
Enables the Board of Medical Examiners to appoint on a case-by-case basis an independent oversight committee to review any adverse action taken by a medical peer review committee against a licensed physician; requires the Department of Health, through the Board of Medical Examiners, to establish and maintain a statewide database containing information pertaining to any adverse action taken by a medical peer review committee against a physician licensed to practice in Tennessee.

 

H.B. 2543
S.B. 2522
Changes the liability standard from negligence to gross negligence in medical malpractice cases involving doctors rendering care in a hospital emergency room.

 

H.B. 2887
S.B. 3486
Limits noneconomic losses to plaintiff in medical malpractice action to $1 million.

 

H.B. 3859
S.B. 2744
Withdrawn 4/7/10
Defines "medical professional" to include any registered nurse, nurse practitioner, or physician as long as at least 50 percent of that physician's patient population is treated at certain hospitals, and further clarifies that a medical professional employed by a nonprofit public benefit corporation operating certain hospitals is considered an employee of that entity.

 

H.B. 3902
S.B. 3182
Requires the Board of Medical Examiners to collect certain information on medical malpractice related to emergency room care and to report concerning that information to the House and Senate Judiciary committees.

Texas
No Regular 2010 Session
Utah

S.B. 145
Signed by governor 3/23/10, Chapter 97
This bill: amends the cap on non-economic damages that may be awarded in a malpractice action; requires an affidavit of merit from a health care professional to proceed with an action if the pre-litigation panel makes a finding of non-meritorious; and limits the liability of a health care provider, in certain circumstances, for the acts or omissions of an ostensible agent.

Vermont

H.B. 615
Establishes a no-fault compensation system for medical injury claims for primary care physicians. The system would be based upon the one that New Zealand instituted in 1974 to replace its litigation-based medical malpractice system. The bill creates a fund from which persons who suffered medical injuries would be compensated, regardless of fault on the part of the primary care provider.

 

H.B. 663
Requires appealable arbitration for medical malpractice cases and to limit the monetary damages available for medical malpractice claims.

Virginia

H.B. 87
Establishes a system for determining the liability of physicians and hospitals for medical injury caused by an unintended or unexpected adverse consequence or unanticipated outcome of (i) health care rendered or provided to the patient or (ii) the failure of a health care provider to render or provide health care to the patient. This system is the exclusive remedy for covered injuries; however, civil actions are permitted against a health care provider where there is clear and convincing evidence that the health care provider intentionally or willfully caused or intended to cause an injury. A claimant need not establish that the health care provider's negligence or breach of contract caused the injury. A claimant whose injury is found to be covered by the measure is eligible to be compensated for (i) expenses of medical and hospital, rehabilitative, therapeutic, nursing, attendant, residential, and custodial care; (ii) loss of earnings for the period that the claimant is unable to perform the functions of any job for which he was reasonably qualified at the date of the medical incident, based on his training and experience at a rate equal to the statewide average weekly wage; (iii) permanent loss or disfigurement as provided in the Workers' Compensation Act; (iv) if the injury is fatal, burial expenses and a death benefit not to exceed $100,000; (v) vocational rehabilitation services; and (vi) reasonable expenses, including reasonable attorney fees. Total awards are subject to the limit currently applicable in medical malpractice actions. Determinations of liability and damages will be made by a three-member Medical Injury Compensation Board. Claims will be reviewed by a panel of three qualified and impartial physicians drawn from a specialty appropriate to the facts of a particular case, whose members are selected by the deans of the schools of medicine of the Eastern Virginia Medical School, University of Virginia School of Medicine, and Medical College of Virginia of Virginia Commonwealth University, which panel will prepare a report regarding whether the claimant's medical injury does or does not satisfy the criteria of a covered injury. Health care providers are required to insure the payment of compensation to injured patients through a policy of medical incident insurance. Failure to insure is punishable by civil and criminal penalties. The expenses of the Board will be paid from an administrative fund maintained by a premium tax levied on liability insurance carriers. An Uninsured Providers' Fund is established to pay awards against uninsured health care providers. The measure applies to all claims for covered injuries occurring in this Commonwealth on and after July 1, 2012.

 

H.B. 306
Creates a pilot program to assess the creation of disclosure programs in health care facilities designed to facilitate disclosures of adverse medical outcomes between health care providers and patients. The Department of Health shall adopt guidelines concerning the standards for such disclosure programs. Participating health care facilities are required to assess any such program and make reports to the Department of Health. The pilot program sunsets on December 31, 2015.

 

H.B. 723
Signed by governor 4/13/10, Chapter 725
S.B. 82
Signed by governor 4/13/10, Chapter 715
Clarifies that the practice of podiatry includes the prevention, diagnosis, treatment, and cure or alleviation of physical conditions, diseases, pain, or infirmities of the human foot and ankle, including the medical, mechanical, and surgical treatment of the ailments of the human foot and ankle. The bill also provides that a podiatrist shall not be permitted to testify as an expert witness against a doctor or osteopath where such doctor or osteopath is a defendant in a medical malpractice case or medical malpractice review panel proceeding.

 

H.J.R. 14
Establishes a joint subcommittee to study alternatives to the existing medical liability system that will reduce the costs of defensive medicine. The joint subcommittee is directed to (i) determine the extent to which defensive medicine is practiced by health care providers in the Commonwealth; (ii) quantify the cost of defensive medicine and the effect of such costs on the health care system; (iii) determine the extent to which aspects of Virginia's medical malpractice system, including the cap on liability, contribute to the amount of defensive medicine practiced in Virginia; (iv) determine the extent to which the implementation of an administrative compensation system or other alternatives to the existing system would reduce defensive medicine practices, and (v) address potential challenges to the implementation of an administrative compensation system, such as its abrogation of the traditional role of juries and the judiciary.

 

S.B. 423
Signed by governor 4/10/10, Chapter 353
Provides that no health care practitioner who renders at any site health care services, voluntarily and without compensation, to a patient of a clinic for the indigent and uninsured that is organized for the delivery of primary health care services as a federally qualified health center designated by the Centers for Medicare & Medicaid Services, shall be liable for any civil damages for any act or omission resulting from the rendering of such services unless the act or omission was the result of his gross negligence or willful misconduct.

Washington

H.B. 1796
Exempts persons who seek medical assistance for a person suffering from a drug-related overdose from prosecution for possession of a controlled substance. Exempts persons who experience a drug-related overdose from prosecution for drug possession where the evidence was obtained as a result of the overdose and the need for medical assistance. Authorizes any person to administer, dispense, prescribe, purchase, acquire, possess, or use Naloxone, given the fulfillment of certain requirements. Authorizes any person to administer Naloxone to a qualifying third party.

 

H.B. 2478
Extends immunity from liability to certain health care providers.

 

H.B. 2814
Provides for health care liability reform by addressing joint and several liability, noneconomic damages, statute of limitations, attorneys' fees upon summary judgment dismissal, promoting periodic payments of future damages, and encouraging early settlement offers. Requires the Department of Health, in consultation with the Department of Revenue, to develop a program to provide business and occupation tax credits for physicians who serve uninsured, Medicare, and medicaid patients in a private practice or a reduced fee access program for the uninsured.

 

H.B. 2963
S.B. 6412
Addresses medical malpractice closed claim reporting.

West Virginia

H.B. 149
Relates to the liability of physicians, osteopathic physicians, nurses, medical students, physician assistants and graduate medical students who render services as volunteer health care providers at youth camps and programs; limiting liability; and provides exceptions.

Wisconsin

A.B. 179
Failed to pass pursuant to Senate Joint Resolution 1 4/28/10
Removes the requirement that a person must serve the notice of a claim for medical malpractice on the attorney general or on a volunteer fire company, political corporation, or governmental subdivision and its officers, employees, or agents within 180 days after the injury. Instead, the bill requires a person who was injured as the result of the medical malpractice to commence that action within the same time period that is required when the claim is against a private health care provider. Raises the limit on the amount that may be recovered in a civil action against local governments, political corporations, and volunteer fire companies and their officers, agents, or employees to the amount allowed against state officers, agents, or employees, $250,000, if the action was related to the provision of health care services, the local government, political corporation, or volunteer fire company provided the health care services, and the officer, agent, or employee who provided the health care services was acting within the scope of his or her duties.

 

A.B. 291
Failed to pass pursuant to Senate Joint Resolution 1 4/28/10
Provides that a parent does have the right to recover for loss of society and companionship if the parent’s adult child is injured as the result of medical malpractice. Provides that an adult child does have the right to recover for loss of society and companionship if the adult child’s parent dies as the result of medical malpractice.

 

A.B. 675
Failed to concur pursuant to Senate Joint Resolution 1 4/28/10
Under the health care liability statutes in current law, certain health care providers must carry health care liability insurance with specified limits and pay assessments to the injured patients and families compensation fund (fund). Certain other health care providers may elect to be subject to the health care liability statutes, including the insurance and assessment requirements. If a medical malpractice claim is made against a health care provider who is subject to the health care liability statutes, or against an employee of such a health care provider, the portion of the claim that exceeds the limits of the provider’s health care liability insurance is paid on behalf of the provider or provider’s employee by the fund. However, certain employees, called health care practitioners, who are providing services not in collaboration with a physician or under the direction and supervision of a physician or nurse anesthetist, are not covered by the fund as employees in the event that a medical malpractice claim is made against them. Nurse-midwives are not required to provide services under the direction and supervision of a physician or nurse anesthetist and since, under the bill, they are no longer required to provide services in collaboration with a physician, they would not be covered by the fund as employees. Therefore, the bill modifies the definition of a health care practitioner to exclude nurse-midwives so that a nurse-midwife is covered by the fund, as under current law, if he or she is providing services as an employee of a health care provider who is subject to the health care liability statutes. In addition, the bill authorizes nurse-midwives to elect to be subject to the health care liability statutes. If a nurse-midwife elects to be subject to those statutes, the nurse-midwife would be required to carry health care liability insurance with the specified limits, would be required to pay the assessments, and, even if not an employee of a health care provider subject to the health care liability statutes, would be covered by the fund for damages exceeding the limits of the insurance.

 

A.B. 815
Failed to pass pursuant to Senate Joint Resolution 1 4/28/10
This bill makes changes to the scope of, and procedure for, discovery in civil cases where the mental or physical condition of a party is in issue. Under this bill, if a claimant raises an issue involving his or her mental or physical condition, the court may order the claimant to undergo one physical, mental, or vocational examination, unless the defending party shows good cause for the claimant to undergo more than one examination. Under the bill, the order for the examination must do all of the following: 1) specify the time, place, manner, conditions, and scope of the examination, and identify who will conduct the examination; 2) prohibit the person who is conducting the examination from inquiring into any issue relating to liability in the underlying action; 3) allow the claimant to record the examination electronically and have one or more witnesses present at the examination; 4) require the examination to be conducted within 100 miles of where the claimant lives, is employed, or transacts business, 5) require the defending party to pay the claimant’s expenses relating to the examination, including travel expenses, child care expenses, and a minimum of $30 per hour. Under the bill, if a claimant seeks damages for personal injuries, a court may order the claimant to give the defending party, and any physician named in the order, permission to inspect any X-rays or hospital or medical records and reports that were taken in the course of diagnosing or treating the injuries for which the claimant seeks damages. If the defending party seeks additional discovery, the bill requires the defending party to prove, by clear, satisfactory, and convincing evidence to a reasonable certainty, that the additional discovery is essential to the defense relating to the cause of the claimant’s injuries and that the discovery relates to a pre-existing condition that is at least substantially similar to the injuries for which the claimant seeks damages. Under the bill, the defending party must give a copy of any report that is made pursuant to an examination or inspection within 15 days after the examination or inspection takes place to the claimant. If a defending party fails to do so, the defending party may not introduce at trial any evidence that the defending party obtained from the examination or inspection. Under the bill, a claimant may introduce evidence obtained from the examination or inspection, regardless of whether the defending party seeks to introduce the evidence.

 

S.B. 127
Signed by governor 5/11/10, Act 278
Requires notification to the state and certain public agencies regarding a medical malpractice claim; relates to time period limits on liability as regards commencing an action for damages for medical malpractice.

 

S.B. 191
Signed by governor 2/11/10, Act 113
Relates to podiatrist-patient privilege, immunity for podiatrists providing emergency care at athletic events, determining an illness or injury and complete forms for assistance to needy veterans, determination of disability for issuing hunting permits, cooperatives organized to provide sickness care, Podiatrists Affiliated Credentialing Board, certification of driver school instructors' physical fitness, Medical Assistance podiatrist choice and to certifications of disability for insurance purposes.

 

S.B. 203
Failed to pass pursuant to Senate Joint Resolution 1 4/28/10
Provides that a parent does have the right to recover for loss of society and companionship if the parent’s adult child is injured as the result of medical malpractice. Provides that an adult child does have the right to recover for loss of society and companionship if the adult child’s parent dies as the result of medical malpractice.

 

S.B. 451
Failed to pass pursuant to Senate Joint Resolution 1 4/28/10
Under the health care liability statutes in current law, certain health care providers must carry health care liability insurance with specified limits and pay assessments to the injured patients and families compensation fund (fund). Certain other health care providers may elect to be subject to the health care liability statutes, including the insurance and assessment requirements. If a medical malpractice claim is made against a health care provider who is subject to the health care liability statutes, or against an employee of such a health care provider, the portion of the claim that exceeds the limits of the provider’s health care liability insurance is paid on behalf of the provider or provider’s employee by the fund. However, certain employees, called health care practitioners, who are providing services not in collaboration with a physician or under the direction and supervision of a physician or nurse anesthetist, are not covered by the fund as employees in the event that a medical malpractice claim is made against them. Nurse-midwives are not required to provide services under the direction and supervision of a physician or nurse anesthetist and since, under the bill, they are no longer required to provide services in collaboration with a physician, they would not be covered by the fund as employees. Therefore, the bill modifies the definition of a health care practitioner to exclude nurse-midwives so that a nurse-midwife is covered by the fund, as under current law, if he or she is providing services as an employee of a health care provider who is subject to the health care liability statutes. In addition, the bill authorizes nurse-midwives to elect to be subject to the health care liability statutes. If a nurse-midwife elects to be subject to those statutes, the nurse-midwife would be required to carry health care liability insurance with the specified limits, would be required to pay the assessments, and, even if not an employee of a health care provider subject to the health care liability statutes, would be covered by the fund for damages exceeding the limits of the insurance.

 

S.B. 563
Failed to pass pursuant to Senate Joint Resolution 1 4/28/10
Under current law, wrongful death claims are subject to the statute of limitations (time limit) under either the general personal injury statute or the medical malpractice statute. This time limit is counted from the time specified in the relevant statute. After the time limit has elapsed, the claim is time barred. For a wrongful death claim that is not based on medical malpractice, the limit is three years from the person’s death. However, Wisconsin courts have concluded that wrongful death claims caused by medical malpractice are subject to the medical malpractice statute of limitations. This limit is three years from the injury, or one year from the date the injury was or should have been discovered, for up to five years after the malpractice. The court held in Estate of Genrich v. OHIC Ins. Co., 2009 WI 67, that the time limit for a wrongful death action caused by medical malpractice is counted from the date of the deceased person’s injury instead of the date of death. This bill reverses that decision. Under this bill, the time limit on all wrongful death claims is counted from the date of the person’s death. The wrongful death claim, even if caused by medical malpractice, exists for three years from the person’s death, for up to six years after the malpractice.

Wyoming

H.B. 26
Signed by governor 3/9/10, Chapter 81
Amends the time for a claimant to file an expert's statement; specifies the admissibility in court of proceedings filed with and decisions by the medical review panel; requires that litigation results be reported to the panel.

 

H.J.R. 6
Withdrawn 2/11/10
Proposes to amend the Wyoming Constitution to modify, in health care provider cases, the general prohibition against the legislature limiting the amount of damages that may be recovered for causing personal injury or death of any person.

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