MSMA to File Amicus Brief Once again, dark forces are gathering to challenge Missouri’s effective tort reform laws. The Supreme Court will hear a challenge to the constitutionality of the cap on non-economic damages.
The case, titled Watts v. Cox Medical Center, and the MSMA amicus brief, is due in late November 2011. The Litigation Center of the AMA and State Medical Societies will likely join MSMA in the brief.
The plaintiff in Watts was awarded $1.4 million in non-economic damages by a jury. The judge reduced those damages to the statutory cap of $350,000. The plaintiff’s attorneys then appealed directly to the Supreme Court. Among the arguments being advanced by the plaintiff is that the cap violates the right to a trial by jury, the separation of powers clause, the equal protection clause, and the due process clause, among other constitutional provisions.
Two years ago, the trial attorneys attempted to overturn the caps in Klotz v. St. Anthony’s Medical Center. The court never reached the constitutional questions that would have overturned the cap in Klotz, instead declaring it inapplicable only to the case at hand.
Boundaries Between Doctors and Nurses Could Be Redefined On June 28, 2011, the Missouri Supreme Court handed down a decision which allows a lawsuit against the Board of Healing Arts to continue.
The Missouri Association of Nurse Anesthetists (MANA) and other plaintiffs have challenged an opinion letter issued by the Board which stated that injecting therapeutic agents under fluoroscopic guidance is beyond the skill and expertise of nurses. MANA contends the letter exceeds the statutory authority granted to the Board in that it attempts to define the scope of practice for nurses instead of arguing the procedure constitutes the practice of medicine.
The trial court disagreed with MANA, and granted the Board’s motion for summary judgment. However, the Supreme Court overruled the trial judge and ordered the case sent back for further proceedings.The eventual outcome of this case could redefine the boundaries of the medical and nursing practice acts, and how they are to be interpreted. MSMA will be closely monitoring this action.
MSMA Joins AMA to Oppose Tax Changes that Encourage More Lawsuits
MSMA has joined the American Medical Association and 90 other state medical societies and national specialty organizations in sending a strongly worded letter to Treasury Secretary Tim Geithner opposing the U.S. Treasury Department’s consideration of a change in policy to allow a special tax deduction for trial attorneys who enter into certain types of contingency fee contracts with their clients.
The Treasury Department is considering a reversal in long-standing tax policy maintaining that court and other litigation expenses advanced by trial attorneys in contingency fee cases are not deductible as business expenses. Such a change is estimated to cost taxpayers more than $1.5 billion and could act as a financial incentive for trial attorneys to file more lawsuits against physicians, contributing to higher medical liability premiums and the overall cost of health care.
Despite the fact that most medical liability claims are dropped or dismissed, defending against meritless claims averages over $22,000 and takes physicians away from patient care.
The letter expresses concern that a change in tax policy would conflict with long-standing state ethics rules against trial attorneys providing financial assistance to clients without the expectation of being paid back upon the successful conclusion of the case.
MSMA Applauds Supreme Court Ruling on Tort Reform
The Missouri State Medical Association, the state’s largest physician organization, applauds today’s Missouri Supreme Court ruling that keeps intact Missouri’s $350,000 cap on non-economic damages in medical liability lawsuits.
In doing so, the court upheld years of prior decisions which supported tort reform measures. Although the court held the cap was unconstitutional to plaintiffs whose injuries occurred before the law was enacted, it did not find the reforms, including the cap, violated any other section of the Constitution.
The MSMA, partnering with the Litigation Center of the American Medical Association and state medical societies, filed an amicus brief in support of a lower court ruling that likewise upheld the cap.
Missouri had been mired in a professional liability insurance crisis when the Missouri General Assembly passed a package of common-sense tort reforms, including the cap on non-economic damages, in 2005. Since that time, the liability insurance premiums paid by physicians is approximately 17% less than in states that have no cap. This has allowed physicians to keep their practices open in Missouri, making health care more affordable and accessible.
Database Created from Lawsuit Decision
The New York Attorney General Andrew Cuomo announced the creation of a nationwide database to establish out-of-network reimbursement rates. The announcement ends a industry-wide probe into the insurance companies use of the flawed Ingenix database, which set reimbursement artificially low. The new database will be run by a newly-created nonprofit, Fair Health, Inc. It will be developed in conjunction with five New York-based universities. Cuomo expects the database to be operational within a year.
The attorney general’s investigation into the Ingenix system parallels the lawsuit AMA v. United HealthCare, of which MSMA is a named plaintiff. Hopefully, the announcement will facilitate a conclusion to the case, which is in the final stages of settlement. In January, United agreed to pay $350 million to settle various class actions brought against it concerning reimbursement rates. The judge has not yet approved that settlement.
Number of Malpractice Claims at an All-Time Low
The Missouri Department of Insurance, Financial Institutions and Professional Registration issued a report on Sept. 8, 2009, which details the number of malpractice claims filed in 2008. According to the report, 1,215 new malpractice claims were filed last year – a ten-year low. At the end of 2008, there were 3,017 open malpractice cases, which is the lowest number of pending cases in the 30 years the Department has been collecting data. The average claim was $202,612, which is up slightly compared to 2007.
The most common allegations in malpractice cases were poor surgical outcomes, non-surgical treatment, diagnostic errors, and patient safety. The full report can be read on the Department’s website.
Much of this can be attributed to the 2005 tort reform legislation spearheaded by MSMA.
