Tort Reform

Longstanding, updated in 2021 for COVID (and not sunsetting).

Arizona passed a Burden of Proof law, raising the needed evidence standard in malpractice.

General Tort: After 40 years of capped non-economic damages, AB 35 passed in 2022 to provide incremental increases.

COVID: Business & Professions Code Section 2395 grants liability protection during declared medical disasters, including state or local emergencies.

HCAA places a "soft cap" on economic damages at $1 million per patient and a "hard cap" on non-economic damages at $300,000 per patient. Nick Rowley (the plaintiff's attorney from CA), who forced the MICRA increases, has moved to CO and is attempting the same here. We expect 2024 cap increases.

Supported legislation regarding phantom damages, candor in 2023 session. Larger tort effort underway in 2024 via Governor's Office (potential inclusion of 3rd party litigation and phantom damages), but Governor's focus is on commercial arena.

Expired: COVID liability protection from EO 2020-37 expired in March 2021. HB 3033 attempted to extend this in 3/2021, referred to rules committee, was not pursued in 2022.

1975 Comprehensive Medical Tort Reform enacted. Medical review panel for all cases. Initial caps at $100k individual and $400k from Patient Compensation Fund without much increase until the last 15 years.

Recent limits increased in 2019 to $500k individual and $1.3M from patient compensation fund. No active legislation changes.

Historic legislation passed in 2023, hard cap on non-economic damages for physicians ($1M) and organizations.

COVID liability protection enacted 2020, HB 826/Act 336.

The Medical Society initiated legislation: H.1501, An Act Relative to Patient Care Access (Galvin). This bill would increase reporting requirements for liability insurers; allow future sources to be included as evidence of collateral sources; require expert witnesses in actions against physicians to be board certified in the same specialty as the defendant physician; grant the Board of Registration in Medicine authority to review the testimony of expert witnesses from a clinical perspective as to the standard of medical care; allow for periodic payments of awards over $50,000; and expand the existing peer review statutes and corresponding confidentiality protections to include ACOs and related entities.

However, tort reform is not on the House or Senate agenda in this session, nor in the last session. That bill went into a study last year and will likely do so again in this session.

Currently working with the Medical Association and the Trial Lawyers on an insurance risk pool like the Wisconsin program, Senator Mann is drafting up legislation on a state-run liability pool.

Multiple recent tort reforms, including caps, expert witness reform, collateral source (ensuring presentation of accurate costs), and "empty chair" defense.

Longstanding caps, with state-run excess liability fund now expanding.

Longstanding caps in place, although constant battles to decrease.

No caps, none coming; Affidavit of Merit required since 1995.

Multiple changes have been made to NM medical tort in recent years negatively affecting the ability to practice in New Mexico. New Mexico’s Medical Malpractice Act brought by HB 75 (2021), HB 11 (2021), and SB 523 (2023) significantly alter the way medical malpractice cases are tried, the amount of damages that can and will be awarded, and the funding and management of the state’s Patient Compensation Fund (PCF).

Under the amendments to the Act, the state’s limit on medical liability damages for independent health care providers of $600,000, plus medical expenses, was raised to $750,000, plus medical expenses, with an annual COLA (cost of living adjustment) tied to the federal consumer price index (CPI). The COLA adjustments begin on January 1, 2023. The new limit of $750,000 applies to claims for injury or death submitted on or after January 1, 2022. The underlying medical liability insurance coverage requirement for independent health care providers was raised from its former level of $200,000 to $250,000.

A separate liability limit of $4,000,000 was enacted beginning on January 1, 2022, for hospitals and outpatient health care facilities that are majority owned and/or controlled by a hospital. This separate limit will be raised by $500,000 per year to a total of $6,000,000 in 2026. Beginning January 1, 2027, a COLA will be applied to the hospital and facility limit as well. Until January 1, 2027, amounts due from a judgment or settlement against a hospital or facility (excluding past and future medical expenses which will be paid by the fund) in excess of $750,000 shall be paid by the hospital or facility. After January 2, 2027, the PCF will no longer pay any portion of a judgment or settlement against a hospital. However, per SB 523, hospital-controlled outpatient health care facilities may also participate in the PCF, and the Superintendent of Insurance shall determine, based on a risk assessment of each hospital-controlled outpatient health care facility, each hospital-controlled outpatient health care facility's base coverage or deposit and additional charges for the fund. The superintendent shall arrange for an actuarial study before determining base coverage or deposit and surcharges.

NC has had tort reform for over 10 years, with caps on damages and a special provision for emergency medicine that the standard to prove negligence must be "clear and convincing" and not "the preponderance of the evidence."

We are monitoring HB 179 regarding vicarious liability. The Ohio State Medical Association and Ohio Hospital Association have weighed in with concerns on the current version of the legislation.

Fought and defeated HB 2014 in 2019, which would have lifted damage cap for pain/suffering.

Administrative venue change by Judicial branch allows for suits in any part of the state to be brought to a different venue. This is problematic given the high rate of jury awards and amounts in Philadelphia County.

We have testified on HR 7093 which would establish a special legislative committee to study and provide recommendations for healthcare liability and reform.

Existing 500k cap on non-economic damages.

Major medical liability reforms passed in 2003. Non-economic damages capped at $250,000 for physician. ($750,000 stacked including hospitals and unrelated entity) Proposition 12 adopted this to the state constitution.

Legal standard is "Willful and Wanton" conduct to prove negligence vs emergency care physician.

Longstanding, with pre-litigation panels, affidavit of merit. 2022 saw the Utah Medical Candor act, governing discussion with families about poor outcomes.

Caps in place since early 2000s. Legislation to require a screening Certificate of Merit was supported by WVACEP.