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Tort Reforms Affect Med-Mal, Claims(Editor's Note: News of tort reform has filled the TV and press of late. Powerful interests have been seeking changes in the law. Threats by health care providers, claimants and insurers have forced action by the government. We here summarize some of the new laws.)Act 13, adopted by the Legislature and signed by the Governor early in 2002, will have a substantial impact on medical malpractice claims against physicians and hospitals. The legislative purposes were clearly set out to reduce insurance costs and promote patient safety. Retaining current and attracting new physicians, as well as protecting healthcare providers from crippling Jury verdicts, were the expressed goals. In addition to restating some prior statutory provisions, the new law deals with informed consents, limitations on damages, controls on the use of expert witnesses, proof of liability, handling medical records, and some procedural changes. Informed consents must still be obtained by the physician prior to surgery, blood transfusions, or the use of experimental medications or devices. To qualify as "informed," a consent must describe the procedure, risks and alternatives. A physician may not knowingly misrepresent his experience or qualifications. Perhaps the most drastic changes in the law relate to damages. A claimant may not recover damages for expenses or lost wages covered by payment from insurance or other collateral sources. But on the other hand, a claimant's recovery will not be subject to subrogation offset, such as health insurance, although government payments, such as Medicaid benefits, may have to be repaid. Some damages must be fixed and paid in lump sums. Past medical expenses, loss of earnings and non-economic damage (pain and suffering) must be paid in lump sums; so must future medical expenses certified to be less than $100,000. Future loss of earnings and noneconomic loss need also be paid in lump sums. Future damages for lost earnings, while paid up front, will be reduced to present worth based on prevailing discount rates. Where a jury finds future damages for medical expenses in excess of $100,000, the verdict must state the damages on an annual basis, and they must be paid quarterly in the year in which they accrue. These damages will be insured by an annuity. In the event of a very high verdict well over the limits of insurance coverage, the Court must, in considering a request for reduction, examine potential adverse effects on the availability of community access to health care. In practice, this will apply primarily to hospitals. Punitive damages may be granted only for willful, wanton or reckless conduct. Even gross negligence will not suffice. They cannot be granted for indirect or vicarious liability. Punitive damages are limited to 200 or less of normal (compensatory) damages but must be at least $ 100,000, unless there is a lower verdict. The full amount of such damages is not recoverable by claimant. Twenty-five percent goes to a state fund, the Mcare Fund. Qualifications for expert witnesses have been tightened up. Those testifying in medical specialities must be qualified in those specialties and board certified if the defendant physician is. There are a number of procedural changes in the new law. One change deals with the time limitation within which suit must be brought. The normal limitation of two years from the date of the injury or the date when the injury should have been known continues for negligence and wrongful death claims. But the new law provides a statute of repose which bars old suits after seven years, regardless of the date of discovery of the injury, except for claims by minors and claims where foreign objects were left in the body during surgery. The second procedural change deals with venue, or the location where suit may be filed. An Interbranch Commission on Venue, was created to study suits brought in distant counties which may be burdensome to health care providers. Its report was due in September, 2002 and recommended that suits against health care providers for professional liability must be filed in the county where the cause of action arose. (The legislature promptly enacted that recommendation into law.) In yet another procedural change, a health care provider who is sued may request dismissal from a suit by filing an "Affidavit of Noninvolvement" when clearly misidentified or not involved in treatment of the patient. Healthcare provider liability is more clearly limited in the case of apparent or "ostensible" agency. Act 13 specifically provides that evidence a physician holds privileges as a medical staff member at a hospital alone is insufficient to establish liability based on agency. The patient must have reasonable justification for believing the hospital was responsible or there must be some "holding out" or representation by the hospital that the physician was chosen and controlled by it. In Act 13, the preservation and accuracy of medical records receive attention. Timely, accurate and complete records are required. Alterations are limited to correcting errors and adding data, but only where dated, timed and initialed. In all likelihood, further changes in the reform of tort law will occur. We at Peacock Keller will try to keep you informed in understandable language as these changes occur. Find out more about our Health/Hospital Practice Area. |
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