July 2018 Newsletter

Wisconsin court preserves reforms – and access to care

A decision this month by Wisconsin’s state Supreme Court kept intact liability reforms that have placed reasonable limits on noneconomic damages and resulted in lower health care costs for patients and physicians.
The court upheld the state’s $750,000 limit on non-economic damages while continuing to guarantee that deserving patients would receive full and unlimited compensation for past and future medical care as well as lost wages.
“Today’s Court decision preserves Wisconsin’s balanced medical liability system that has been instrumental in attracting physicians to communities across Wisconsin, while providing assurance to injured patients that they will receive payment for the full amount of a jury’s award of medical expenses, lost wages, and other economic losses,” Wisconsin Hospital Association President Eric Borgerding stated.
The state maintains an Injured Patients and Families Compensation Fund using assessments charged to physicians, clinics, hospitals and other participants and covers all damages above their primary insurance limits. Premiums paid by physicians to the fund have been dropping since 2014, with rates falling by 34 percent in 2016, 30 percent last year and an anticipated drop of another 30 percent this year.
This month’s decision comes as a reversal to one made in 2005 that struck down reforms and sent the issue back to the Wisconsin legislature who convened a Medical Malpractice Task Force charged with making changes to the law.
“The task force found that noneconomic damages are an aspect of recovery that often is based on emotion and not on any predictable standard,” wrote Chief Justice Patience D. Roggensack.
To read more about the decision in Wisconsin and its impact on costs and care, click here.

Good Samaritan legislation moves closer to law

The Good Samaritan Health Professionals Act, long considered a bipartisan step forward in enacting common sense liability legislation, moved one step closer to reality earlier this month after the HCLA pushed for inclusion of its language in another key health care bill.
“The Good Samaritan Health Professionals Act of 2018 would help protect medical volunteers from such lawsuits during a federally declared disaster, and ensure that vital health care services often provided by medical volunteers remain available – all while respecting existing medical liability laws in individual states,” the HCLA wrote in a letter to Energy and Commerce Committee Chairman Greg Walden and Ranking Member Frank Pallone.
The language of the bill was subsequently included in the House Energy and Commerce Committee’s markup of the Pandemic and All Hazards Preparedness Reauthorization Act of 2018.
Efforts to pass this legislation aim to ensure an adequate supply of trained health care professionals is ready, willing and able to volunteer their services during a catastrophe, and that they will not be deterred or turned away due to the threat of lawsuits.
The combined legislation now awaits a vote by the full House of Representatives. To read the HCLA letter that urged committee leadership to adopt the Good Samaritan language in legislation pending before the committee, click here.

No limits on liability lead to higher costs

Attempts by the Kentucky legislature to push for a constitutional amendment on liability reform have not been successful, leaving the state without any reasonable limits on non-economic damages and pushing up health care costs as a result of defensive medicine.
State Sen. Ralph Alvarado, a physician, knows the issue all too well.
“You order tests to look for things that are rare and that are improbable just because if you happen to miss something you’re going to get potentially sued. So, you order the tests for things that are probably unnecessary, that add a lot more cost to health care,” Alvarado said in an interview.
The issue has garnered additional attention in recent years as the state has gained notoriety as having a poor legal liability climate, and there’s hope that even those traditionally opposed to reforms could come together on a solution.
“I think the attorneys are interested in having some reforms that’ll make it easier for them to practice law, to expedite cases, and be able to let juries to their work again,” Alvarado stated.
To read more about efforts to lower health care costs for patients in Kentucky through liability reform, click here.

Study highlights differences between orthopaedic surgeons as plaintiff, defense expert witnesses

Given the influence and experience that expert witnesses bring to a liability lawsuit, a recent study sought to characterize differences between those who testify on behalf of a plaintiff and those who testify in support of a defendant.
Across the country, expert witnesses are recruited and compensated without established standards, and a study of the differences between those who work as witnesses for plaintiffs and defendants aimed to shed light on their backgrounds and this impact to a court’s opinion on a liability matter.
The study, completed by the Department of Orthopaedic Surgery, David Geffen School of Medicine, University of California Los Angeles and published in the Journal of Bone and Joint Surgery, did a deep dive into the backgrounds of 306 expert witnesses between 2013 and 2017.
The study found that plaintiff witnesses averaged 36 years of experience, compared with 31 years for defense witnesses, and that defense witnesses tended to hold an academic position more often than plaintiff witnesses. The two groups rarely cross over to provide expert testimony; only two witnesses out of the 306 studied had testified for both a plaintiff and a defendant.
“Defense expert witnesses exhibited greater scholarly impact, practiced within academic settings with greater frequency, were more frequently fellowship-trained, and advertised their services less than expert witnesses for the plaintiff,” the study found.
“These results indicate that there are inherent differences in the way expert witnesses distribute across the defense and plaintiff sides, the nuances of which may have ramifications on malpractice litigation and court decisions.”
To read more about the comparison of expert witnesses and the possible impact of these differences on liability cases, click here.