Mixed results in medical liability ballot initiatives: voters approve caps in Nevada but not in Oregon or Wyoming; Florida limits attorney contingency fees

OB/GYN News, Dec 1, 2004 by Mary Ellen Schneider

Physicians got mixed results when they took the issue of medical liability reform to the voters this year. Voters approved caps on noneconomic damages and other reforms in Nevada and passed limits on attorney contingency fees in Florida, but failed to enact damage caps in Oregon and Wyoming when they went to the polls last month.

John C. Nelson, M.D., president of the American Medical Association, said there is widespread support for medical liability reform across the country and that even those ballot initiatives that failed this year were defeated in tight votes.

The AMA continues to focus on reforms at the federal level, where the reelection of President Bush and Republican gains in the Senate could help move this issue forward.

"We will be relentless in pursing this," Dr. Nelson said.

It's important for physicians to continue to support reforms at both the state and federal level, said Michael O. Fleming, M.D., immediate past president and board chair for the American Academy of Family Physicians.

Even though federal reform is critical, Dr. Fleming said, states should continue to pursue solutions that work at the local level. For example, in Dr. Fleming's home state of Louisiana, the state has a medical review panel that evaluates malpractice cases before they go to trial. This approach has worked well, he said.

The success of ballot initiatives in places such as Florida and Nevada will also provide additional information about how to stabilize the insurance market that could be useful at the federal level, said Patrick Hope, legislative counsel for the American College of Physicians.

In Nevada, physicians won a big victory when nearly 60% of voters approved an initiative that included reforms such as removing exceptions to the current $350,000 cap on noneconomic damages, limiting contingency fees for attorneys, and reducing the statute of limitations for filing a medical liability case.

Voters also defeated two measures supported by plaintiffs' attorneys. One measure would have put in place penalties for lawyers filing frivolous lawsuits, but also would have prohibited the legislature from lowering the amount of damages patients can receive. A second measure defeated by Nevada voters proposed some insurance reforms, but would have voided any damage cap that did not result in lower insurance premiums.

"It's a validation by the voters that the crisis we've had here the last 3 years is real and needs to be addressed," said Larry Matheis, executive director of the Nevada State Medical Association.

Physicians have been leaving the state in record numbers, Mr. Matheis said, and people have seen the impact in their own lives as they were forced to switch doctors or experienced longer waiting times for appointments.

And the success in Nevada could help breathe new life into action at the federal level. The victory in Nevada is the first time that voters have approved comprehensive medical liability reforms similar to California's Medical Injury Compensation Reform Act, Mr. Matheis said. "That gives added weight to the efforts at the national level," he said.

Physicians groups in Florida were also successful in passing a constitutional amendment to limit contingency fees charged by attorneys. The amendment ensures that patients in a medical liability case will receive 70% of the first $250,000 awarded and 90% of the remainder of the award. The limits will not affect payments for court and witness expenses.

"It's a win-win for basically everyone, including good trial attorneys," said Dennis Agliano, M.D., a surgeon in Tampa, Fla., and president of the Florida Medical Association.

Under the amendment, patients will get more of the awards, and physicians may see lower premiums as a result because it could lead attorneys to file fewer frivolous cases. The state already has a $500,000 cap on noneconomic damages, which can be extended up to $1 million in egregious cases.

But Dr. Agliano said he is disappointed that voters also approved two amendments supported by plaintiffs' attorneys. The amendments allow patients to review records of health care facilities' or providers' adverse medical incidents and prohibit physicians who have been found to have committed at least three "incidents of medical malpractice" from being licensed to practice medicine in the state.

These ideas sound good, Dr. Agliano said, but if carried out would impact patient access to care. Officials at the Florida Medical Association plan to work with the state legislature to ensure these measures do not aggravate the state's access problems.

Wyoming also had mixed success in pitching its medical liability reform plan to voters. In that state, voters narrowly defeated an amendment that would have allowed the state legislature to limit noneconomic damage payments.

Voters did approve an amendment to allow the state legislature to require alternative dispute resolution or medical panel review before a person can file a medical malpractice lawsuit.