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In the Courts

Physicians Decry Supreme Court Ruling on Tort Reform (7/312012)

Your MSMA strongly condemns the Missouri Supreme Court ruling that eviscerates one of the nation's most successful tort reform laws. In Watts v. Cox Medical Center, the Court ignored more than 25 years of precedent by striking down the state's cap on non-economic damages in medical liability lawsuits.

The caps were part of a sweeping tort reform package that passed the General Assembly with bi-partisan support in 2005. "The ruling is an immeasurable disappointment," said MSMA President Stephen Slocum, M.D. "It turns back the clock to a time when a medical lawsuit crisis had pushed Missouri doctors to the breaking point. Scores of physicians moved away, and access to health care was threatened in every corner of the state."

Prior to the legal system reforms in 2005, Missouri physicians had seen their medical lawsuit insurance premiums skyrocket. Some lost their coverage altogether. As a result, many physicians left their practice, retired early, or abandoned high-risk services such as surgery and delivering babies.

But since the cap on non-economic damages went into effect, the number of lawsuits filed against physicians has fallen almost 58%, the state has added nearly 1,000 physicians, and Missouri has seen a $27 million decrease in lawsuit insurance premiums. This is money that did not go to fight lawsuits, but rather remained in the Missouri health care system, providing better services and better access to care.

MSMA is calling on the General Assembly and the Governor to make restoration of the cap their highest legislative priority in 2013. "This is an issue that impacts every Missourian," said Dr. Slocum. "Who will tend to the sick? Who will deliver the babies? Who will staff the emergency rooms? For the sake of their constituents, our elected officials in Jefferson City must repair what the Supreme Court has done."

US Supreme Court Rules on Health Care Reform  (6/28/2012)

The US Supreme Court just handed down its much-anticipated ruling on the Affordable Care Act. On a 5-4 vote, the court upheld the controversial law as constitutional. MSMA immediately issued a statement, calling on Congress and the White House to adhere to MSMA’s core principles for health care reform as the scores of provisions in the law are set into motion.

MSMA’s statement follows:

Physician Group Reacts to Supreme Court Ruling on Health Care Reform

The Missouri State Medical Association (MSMA) today issued a statement regarding the long-anticipated U.S. Supreme Court ruling on health care reform. While MSMA leaves the matters of constitutional law to others, it remains focused on the consequences of judicial and political decisions that impact the practice of medicine and, most importantly, the patients of Missouri.

In a 5-4 decision, the high court largely upheld the constitutionality of the entire Patient Protection and Affordable Care Act (PPACA), including its controversial individual insurance mandate. Though political debate on the issue will likely simmer long into the future, the immediate reality is that PPACA and its scores of provisions are now fully in effect.

MSMA continues to prepare for the many changes PPACA will beget, and will make every effort to ensure that those changes – and the multitude of rules and regulations promulgated to implement them – are first and foremost in the best interest of our patients.
Toward that end, MSMA encourages Congress and the Obama Administration to adhere to the following core principles as the manifold provisions of PPACA are set into motion.

MSMA’s Core Principles for Health Care Reform

• Guarantee that all Americans will be free to choose and privately contract with their physician and hospital
• Replace the flawed Sustainable Growth Rate formula for Medicare payment updates
• Expand affordable health insurance coverage, with portability, guaranteed renewability, and no pre-existing condition exclusions, and allow interstate sales of health insurance
• Enact meaningful tort reforms comparable to California’s highly effective MICRA law, and augment them with other constructive approaches such as mandatory mediation and special health courts
• Guarantee that all government-sponsored programs set physician reimbursement rates at levels that allow all physicians to sustain their practices
• Support chronic disease management and coordination of care
• Create incentives and expand medical school training opportunities to address workforce shortages, enhance preventive and primary care services, especially in under-served areas, and support the medical home model
• Promote true health care quality improvements without economic profiling; comparative effectiveness efforts must be administered by an independent body, and must always leave treatment decisions up to physicians and their patients
• Eliminate or simplify administrative burdens, and standardize the health insurance claims process

Editorial on Medical Liability Caps Impacting Health Services in Missouri (5/2012)

Missouri Supreme Court Hears Oral Arguments in Tort Reform Case (5/2012)
MSMA is still waiting on the Missouri Supreme Court decision regarding tort reform. The Court heard oral arguments in the case of Watts v. Cox Medical Center on March 27. In this case, plaintiff ’s attorneys urge the court to overturn the noneconomic damage caps that were passed in 2005 as a result of MSMA’s efforts at tort reform. The full court heard the case, with the exception of Judge Zel Fischer, who recused himself.

The law established a $350,000 cap on vague damages such as pain and suffering and mental anguish. MSMA, the Litigation Center of the American Medical Association and State Medical Societies, and other national and statewide health care associations filed an amicus brief in the case. The oral arguments centered on the plaintiff ’s right to a jury trial, and our opponents argued that any limit on noneconomic damages violates that right.

Their first argument was that the determination of damages is a fact-finding function of the jury, and allowing the legislature to enact the cap invades the province of the jury. Second, they argued that prior precedent established by the court was wrongly decided and should be overruled.

The court upheld similar caps in 1992 in the Adams v. Children’s Mercy Hospital case. Although this fact may influence the court, it is not controlling. Other state courts have been split over whether their state legislatures may impose non-economic caps. There also was brief discussion during the argument concerning equal protection and due process. The Court usually takes two to three months to deliver a decision. This can be extended if there are multiple opinions by the court.

Contact Jeff Howell for more information.

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.   








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