July 2019 Newsletter


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  • July 31, 2019

Opportunity for ACCESS: Liability reform introduced in Congress

A new bill introduced in Congress offers the opportunity to limit the patchwork of medical liability laws and bring certainty to patients across the country seeking access to care.

The Accessible Care by Curbing Excessive LawSuitS Act (ACCESS Act) is a comprehensive medical liability reform bill introduced by Representative Richard Hudson (R-NC) and modeled after proven reforms already in place in Texas, California, and many other states around the country. Rep. Hudson was joined in introducing the bill by Representatives Roger Marshall, MD (R-KS) and Larry Bucshon, MD (R-IN).

The bill, H.R. 3656, ensures full and unlimited recovery of economic damages to deserving patients for expenses such as lost wages, past and future medical expenses, rehabilitation costs, and other out-of-pocket expenses. The legislation also permits the additional recovery of up to $250,000 for non-economic damages, such as damages awarded for pain and suffering, and the bill also protects states’ rights in the process.

Recent estimates from the Congressional Budget Office (CBO) and the staff of the Joint Committee on Taxation (JCT) estimate that the provisions included in the bill would reduce federal spending by about $14 billion over five years, and almost $50 billion over 10 years.

By enacting a reasonable statute of limitations for filing lawsuits, and limiting attorney fees, the bill will ensure a speedier resolution to claims and that damage awards go to patients – not personal injury lawyers. The bill also seeks to reduce needless litigation by encouraging more open communications between patients and providers, and weeding out meritless lawsuits.

“Reforming our broken medical liability system is a necessary step in preserving access to care for patients across the country while reducing lawsuit abuse,” said HCLA chair Mike Stinson. “The HCLA supports the ACCESS Act and looks forward to working in a bipartisan manner to pass this bill and ensure the system efficiently and fairly works for patients and health care providers alike.”

To read more about the promising effects the bill will have on access to care, click here.

Pediatrics group highlights role of communications in avoiding liability lawsuits

With a patchwork of unpredictable laws in place around the country, the American Academy of Pediatrics (AAP) has shared advice with its physicians on how to best avoid liability lawsuits.

In an AAP News column, Dr. Susan Scott of the AAP Committee on Medical Liability and Risk Management highlighted the importance of communication in a variable liability climate where laws can vary from state to state, noting that 70% of medical liability lawsuits are filed due to a poor physician-patient relationship

Given the prospective patient’s ability to access online information about a physician’s credentials and reputation before making appointments, Scott urges practitioners to incorporate communication efforts into their practice.

“All that being equal, they often select clinicians based on how well they communicate and build a physician-patient partnership during initial medical encounters,” Scott wrote. “Such traits are associated with quality of care and can serve as buffers from medical liability actions.”

In many states, recent efforts to reform the broken liability system have captured the importance of the physician-patient relationship and incorporated ‘I’m sorry’ legislation to allow physicians to more openly communicate with patients without the fear of the expression being used against them in a liability lawsuit. However, without comprehensive liability reform at the federal level, physicians remain vulnerable to changing political winds that can encourage medical lawsuit abuse.

To read Dr. Scott’s column in AAP News, click here.

PA Supreme Court ruling safeguards communication of risk

In reviewing a lower Superior Court ruling, the Pennsylvania Supreme Court ruled in favor of medical practitioner defendants who wish to include evidence of ‘risks and complications’ when facing a liability lawsuit.

The initial ruling stemmed from a declaration during court proceedings that the adverse outcome in question was due to a common complication and was not, in and of itself, evidence of negligence.

In its review, the Supreme Court overturned this decision, concluding that “without the admission of testimony of known risks or complications, where appropriate, a jury may be deprived of information that a certain injury can occur absent negligence, and, thus, would be encouraged to infer that a physician is a guarantor of a particular outcome. [This is] inconsistent with the principle that certain injuries happen even in the absence of negligent conduct.”

This ruling ensures physicians have the ability to explain, in their defense, that risks and complications remain an inherent aspect of medical procedures and alone, are not indicative of negligence. The Supreme Court’s ruling, however, upheld the lower court’s decision that informed consent evidence is not admissible in a medical negligence case that does not involve an informed consent claim.

To read more about the ruling in favor of transparency and the ability of physicians to defend themselves against medical lawsuit abuse, click here.

Kentucky liability lawsuits must have merit

An effort to reduce medical lawsuit abuse in Kentucky went into effect in late June, requiring patients seeking to file a claim of negligence to consult with an expert and certify the merit of the case before proceeding.

The new law, passed earlier this year but only applying to lawsuits filed after June 27, 2019, provides guidance on certificate of merit requirements to ensure that plaintiffs bringing forth medical liability lawsuits have consulted with at least one qualified expert on standard of care or negligence.

Extensions are offered to plaintiffs who may be nearing the expiration of a statute of limitations or are waiting on official medical records to accompany a claim. Plaintiffs or patients naming several defendants are only required to submit one certificate on behalf of their claim.

Without a certificate of merit, medical practitioner defendants have the opportunity to dismiss the litigation filed against them and ensure that only patients with deserving claims can move forward

To read more about how liability reform in Kentucky will limit the number of meritless lawsuits filed in the state, click here.