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Doctors take tort reform fight directly to voters

In state elections, physicians press for ballot initiatives that would cap awards and fees

From the October ACP Observer, copyright 2004 by the American College of Physicians.

By Janet Colwell

In the past year, general internist N.H. Tucker III, FACP, has seen one of the best pulmonary specialists at his Jacksonville, Fla., hospital leave to practice in Montana. At the same time, his wife's obstetrician has pulled up stakes and moved to Idaho.

"Every day we have a few more physicians leave," said Dr. Tucker. "I'm having more and more trouble finding ob/gyns and neurosurgeons when I need them."

That migration, along with Dr. Tucker's own rising liability insurance premiums, has convinced him to get involved in this year's state election, where a ballot initiative to limit attorneys' fees in medical liability cases is going directly to voters.

He and other internists around the state spearheaded a grassroots effort to get enough signatures to put the initiative on the November ballot. They succeeded in gathering more than 600,000, said Dr. Tucker, Chair of the ACP Florida Chapter's Legislative Committee, who kept petitions in his office for patients to sign.

Now, he said, he has now turned his attention to raising money from chapter members and local businesses to help get the initiative passed—and to defeat two competing "patient safety" state ballot initiatives backed by trial lawyers.

For many physicians, tort reform will be the litmus test they'll apply in next month's election. In the presidential election, both candidates favor reform, but to different degrees. (See "ACP members champion their presidential candidates.") And reform advocates are closely watching House and Senate races to see if the logjam on federal reform legislation can be broken.

And in four states, the question of whether to enact such reforms as caps on noneconomic damages is going directly to the people. Voters in Nevada, Florida, Oregon and Wyoming next month will decide the merit of several proposals, some of which—if passed—would amend state constitutions and allow reforms to take effect. Physicians in each of those states are making time in their busy practices to educate patients and take part in voter registration drives.

All the initiatives are the focus of multimillion-dollar campaigns aimed at convincing voters that physicians' sky-high liability premiums threaten patients' access to care. But attorney groups in each state are fighting back. In at least two states, they have mustered competing ballot initiatives they say are needed to protect patients from error-prone physicians.

Focus on access

The ballot initiatives going before voters next month are just the latest round of reform efforts designed to help physicians get some liability insurance relief.

Much of that activity has centered on state legislatures. Last year, for instance, the National Conference of State Legislatures reported that 34 states considered tort reform bills, while 11 states—including Nevada, where physicians are trying to get a ballot initiative passed—actually approved some reform legislation. The report is online.

Tort reform advocates and opponents alike are closely watching the state ballot races to gauge public sentiment on tort reform. "With the current U.S. Congress hopelessly deadlocked on national tort reform, physicians are looking to the states for immediate help," said Robert B. Doherty, ACP's Senior Vice President for Governmental Affairs and Public Policy. "Successful state ballot initiatives to cap noneconomic damages could help jump-start a renewed discussion in Congress next year on a national solution to the liability crisis."

According to the AMA, physicians in 20 states across the country are in crisis because of high premiums. The AMA has made malpractice reform its top legislative priority and is giving as much as $100,000, as well as moral support, to several state ballot campaigns.

All four states with initiatives have had highly visible liability problems. In Nevada, for instance, news reports have highlighted temporary closings at trauma centers, service cuts in emergency departments, and the fact that more than half the former liability carriers in the state have left the market in the past three years.

In Florida, physicians say they pay the highest malpractice premiums in the nation. (According to a General Accounting Office report released in 2003, general internists in Dade County in 2002 paid a base premium rate of more than $56,000.) Many physicians in the state claim they are either restricting care or choosing to "go bare"—practicing without any liability coverage at all.

In Wyoming, one of the state's major liability insurers—which insured about half of Wyoming's physicians—pulled out last spring, said Robert M. Monger, ACP Member, president of the Wyoming Medical Society (WMS) and a rheumatologist in Cheyenne.

"All six states bordering us have already enacted liability reform," Dr. Monger said. "Because of that, doctors in Montana, Colorado and other nearby states pay significantly less for medical malpractice insurance than we do, making it difficult to recruit doctors here."

And in Oregon, with rural areas of its own, health care systems are struggling to retain specialists, including surgeons. "Trauma service is a sometime thing in many good-sized communities," said James Kronenberg, chief operating officer of the Oregon Medical Association, "and primary care is in short supply nearly everywhere, with large communities like Eugene and Salem having mostly closed practices."

Physicians in all four states are highlighting those kinds of access problems. "Our message is that if we don't fix the system by adopting proven reforms, there's no way to know whether you'll have a doctor when you need one," said Lawrence P. Matheis, executive director of the Nevada State Medical Association (NSMA). The NSMA is leading a state coalition of physicians, hospitals and businesses that plans to spend between $5 million and $10 million to support its reform initiative.

Coalition spending in Nevada will also go to oppose two counter initiatives being sponsored by trial lawyers. And in all four states, attorney groups are denouncing reform measures as ways to let negligent providers escape blame.

Changing state constitutions

The goal of Nevada's ballot initiative is to fix flawed state legislation.

In 2002, the Nevada legislature approved a $350,000 cap on noneconomic damages in medical liability suits. But the state's medical community claims the broad exceptions included in the law—allowing judges, for instance, to increase those awards in cases of gross malpractice—have limited the law's effectiveness.

The NSMA initiative would reaffirm that cap, remove the legal exceptions and mandate other reform measures, including limits on attorneys' fees.

Physician ballot initiatives in Florida, Wyoming and Oregon, however, have a different target: They seek constitutional amendments to allow legislative reforms to stick in those states.

The WMS, for instance, is backing two initiatives to amend the state constitution. One would let state lawmakers impose caps on noneconomic damages, while the other would allow the legislature to set up pre-trial screening panels to weed out frivolous lawsuits. Screening panels were tried in the state 15 years ago, Dr. Monger said, and were very effective in stopping frivolous lawsuits—but they were later ruled unconstitutional by the state supreme court.

In Florida, the Florida Medical Association (FMA) is backing the "Citizens for a Fair Share" initiative, which seeks to reduce frivolous lawsuits by amending the constitution to cap attorneys' fees at 30%.

And in Oregon, the constitutional amendment, if passed, would reimpose a $500,000 cap on noneconomic damages that was passed in 1987. A return to that $500,000 cap would start to reduce the 300% increase in premiums that high-risk specialists have struggled with since the cap was ruled unconstitutional.

Battling attorneys

But in Nevada, physicians are facing constitutional amendment initiatives sponsored by the Nevada Trial Lawyers Association that would overturn liability reforms.

While one initiative on the surface seeks to roll back auto insurance rates, it contains a provision that would eliminate existing caps on noneconomic damages in medical liability cases; the other would prohibit limits on attorneys' fees. Because the measures are constitutional amendments, they would, if approved, supercede the medical community's tort reform initiative.

And in Florida, a group of trial attorneys known as "Floridians for Patient Protection" is backing two constitutional amendment ballot proposals of their own. One would revoke the license of any physician who loses three malpractice suits, while the other would open up physician peer review records of medical errors to the public.

The group is also leading the fight against the physicians' ballot reform initiatives by highlighting the issue of patient safety. According to its Web site, "Medical mistakes kill at a minimum 195,000 Americans every year. That means medical errors kill 31 Floridians every day."

How are physicians responding to the lawyers' claims? Rather than risk labeling themselves as "anti-patient safety," Jacksonville's Dr. Tucker said physicians are keeping their discussions with patients focused on the FMA's "Citizens for a Fair Share" initiative. Dr. Tucker said he points out to patients that doctors in the state are trying to solve the liability insurance crisis by making sure malpractice victims get fairly compensated.

"A lot of medical mistakes could be corrected with a proper reporting system where mistakes can be voluntarily reported without fear of punitive action," he said. "We're trying to stay on that message."

In its media campaign to defeat the lawyers' initiatives, the FMA is emphasizing physicians' concern about medical errors, said Jeff Scott, JD, FMA's associate general counsel—and the fact that doctors, through their own ballot initiative, want to ensure that patients keep the lion's share of malpractice awards and settlements.

"Our message is that injured patients will get more of the award under our amendment," Mr. Scott said. "We're not capping damages; we're capping what the attorney gets and providing more to the patient."

As for the confidential peer review process, Mr. Scott said, the FMA argues that going public with that process may hamper physicians' participation in peer review. It might also discourage physicians' from contributing to a new confidential state reporting system on "near miss" errors.

The FMA is also pointing out that the three-strikes proposal might very well boost the number of frivolous lawsuits in the state by discouraging physicians from fighting malpractice claims.

"Anytime a doctor is sued, whether the case is meritorious or not, there would a huge incentive to settle to avoid having a strike against him or her," Mr. Scott said. "That's not how we want doctors to practice."

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A closer look at state ballot measures

Oregon: Measure 35. Would amend the state constitution to impose a limit of $500,000, adjusted annually for inflation, on noneconomic damages in medical liability cases.


Physicians in Oregon are backing Measure 35, a ballot initiative to amend the state constitution to allow caps on noneconomic damages. Physicians in several states are also mounting multimillion-dollar media campaigns to convince voters that tort reform is needed.


Florida: Citizens for a Fair Share, Amendment 3. Would amend the constitution to allow limits on attorneys' fees in medical malpractice cases to 30% of the first $250,000 in noneconomic damage awards, then 10% of damages in excess of $250,000.

Nevada: Keep Our Doctors in Nevada. Would impose a $350,000 cap on noneconomic damages; limit attorneys' fees to several different tiers of damage awards; allow damages of more than $500,000 to be paid in installments; and limit physicians' financial responsibility to their percentage of fault in the injury.

Wyoming: 1. Constitutional Amendment C. Would amend the constitution to allow medical review panels to weed out frivolous medical liability lawsuits.

2. Malpractice Amendment: Would amend the constitution to allow the legislature to impose a cap on noneconomic damage awards. If approved, the state legislature could vote to set a specific damage cap in 2005.

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