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| Medical Malpractice -- reform or retreat
Materials and Commentary on a matter of National Interest Table of Contents: Issues as defined by the TIPS Standing Committee on Emerging Issues... Click Here FEDERAL ACTIONS Legislation pending in the US Congress `Patients First Act of 2003' S 11 (hyperlink) Bill summary and status file (hyperlink) Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2003' HR 5 `(hyperlink) Bill summary and status file (hyperlink) GAO Report Medical Malpractice Insurance: Multiple Factors Have Contributed to Increased Premium Rates. GAO-03-702 June 27' Despite presidential priority, tort reform stalls in Congress TEXAS PROPOSITION 12 Secretary of State's description: HJR 3 would immediately authorize the Legislature to limit non-economic damages assessed against a provider of medical or health care and, after January 1, 2005, to limit awards in all other types of cases. The proposed amendment will appear on the ballot as follows: "The constitutional amendment concerning civil lawsuits against doctors and health care providers, and other actions, authorizing the legislature to determine limitations on non-economic damages." A JOINT RESOLUTION proposing a constitutional amendment concerning civil lawsuits
against doctors and health care providers, and other actions,
authorizing the legislature to determine limitations on
non-economic damages.
BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article III, Texas Constitution, is amended by
adding Section 66 to read as follows:
Sec. 66. (a) In this section "economic damages" means
compensatory damages for any pecuniary loss or damage. The term
does not include any loss or damage, however characterized, for
past, present, and future physical pain and suffering, mental
anguish and suffering, loss of consortium, loss of companionship
and society, disfigurement, or physical impairment.
(b) Notwithstanding any other provision of this
constitution, the legislature by statute may determine the limit of
liability for all damages and losses, however characterized, 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,
however characterized, that is or is claimed to be a cause of, or
that contributes or is claimed to contribute to, disease, injury,
or death of a person. This subsection applies without regard to
whether the claim or cause of action arises under or is derived from
common law, a statute, or other law, including any claim or cause of
action based or sounding in tort, contract, or any other theory or
any combination of theories of liability. The claim or cause of
action includes a medical or health care liability claim as defined
by the legislature.
(c) Notwithstanding any other provision of this
constitution, after January 1, 2005, the legislature by statute may
determine the limit of liability for all damages and losses,
however characterized, other than economic damages, in a claim or
cause of action not covered by Subsection (b) of this section. This
subsection applies without regard to whether the claim or cause of
action arises under or is derived from common law, a statute, or
other law, including any claim or cause of action based or sounding
in tort, contract, or any other theory or any combination of
theories of liability.
(d) Except as provided by Subsection (c) of this section,
this section applies to a law enacted by the 78th Legislature,
Regular Session, 2003, and to all subsequent regular or special
sessions of the legislature.
(e) A legislative exercise of authority under Subsection
(c) of this section requires a three-fifths vote of all the members
elected to each house and must include language citing this
section.
Link to Texas Bar Association Point / Counterpoint on Prop 12 Commentary from the Risk Mail list serve (used with permission of the commentators): Texans will vote Sept. 13 on this proposition that will cap non-economic medical malpractice damages at $250,000 per claimant. This link is to an opinion against the Proposition authored by two California consumer advocates, one the author of CA Prop. 103. http://www.chron.com/cs/CDA/story.hts/editorial/outlook/2084627 Essentially, the authors suggest that meaningful reform came not from capping medical malpractice awards, but from CA Prop. 103 that opened the insurance industry's financials and rating data to the public and requires justification of rate increases. Craig Thummel, Independent Risk Management Consultant and Insurance Advisor One pernicious effect, in my view, is to make medical device manufacturers and pharmaceutical companies more lucrative "deep pockets" for the plaintiffs bar. (An instance of the law of unintended consequences, perhaps?) Many medmal claims also involve elements of product liability allegations. What we have seen at my company is that capping the docs liability shifts a greater/disproportionate chunk of claim costs over to other healthcare entities who enjoy no such limitation. It incentives the plaintiffs to hone the product angle. Selective tort reform or caps on one type of healthcare entity have hammered manufacturers of healthcare products, whose lobbies are not as effective as the doctors. California's MICRA has given us untold painful reminders of this. Kevin Quinley, CPCU, ARM, AIC, AIM, ARe Florida Medical Malpractice Legislation Link to full text of 2003 bill passed in special session Summary of Florida Legislation (FMA) Excerpts of Reports Received by the American Tort Reform Association on the Crisis in Medical Liability The case against the Florida liability caps legislation The case against Tort Reform Crisis or Propaganda Oath changes malpractice debate "facts" Liability premiums did not drop after "tort reform" enacted during the insurance crisis of the 1980s. - (1994) Weiss Ratings: Caps fail to contain malpractice cost increases CALIFORNIA (MICRA) The California Experience; per the California Medical Association California's Law Restricting Medical Malpractice Lawsuits and Compensation Has Failed to Lower Insurance Premiums or Health Care Costs: See also commentary, above. MEDICAL MALPRACTICE - General and Miscellaneous Litigation and Good Medicine: resources, commentary and links DEMS' LAWYER WOES (Medical Malpractice to be made an issue in the next election.) Medical Malpractice: Tort Reform--National Conference of State Legislatures |
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