October 2017 Newsletter

Oklahoma Supreme Court ruling could lead to medical lawsuit abuse

Patients and physicians in Oklahoma could face a deteriorating liability climate in the coming years, as the state Supreme Court recently ruled against an effective liability reform.

This setback to accessible and affordable care is the third time the Supreme Court has ruled against a certificate of merit requirement, following several revisions to past legislation which had also been invalidated by the Court.

The latest version of the reforms included expanding the scope of expert witness affidavits to include all civil negligence actions which required testimony by an expert, following previous rulings that the law put a higher burden on victims of professional negligence than victims of general negligence.

“We believe the certificate of merit has been an important legal reform that helped prevent baseless lawsuits, and we will look carefully at our options and next steps to address today’s ruling,” said Wes Glinsmann, executive director of the Oklahoma State Medical Association.

Without an umbrella of federal reforms, medical liability at the state level has too often been a game of one step forward, two steps back, as reforms are passed and then continuously challenged by the personal injury lobby.

To read more about the ruling in Oklahoma, click here.

Study: Apologies accepted

A recent study of programs that encouraged apologies by physicians and health care providers whose patients have experienced an adverse outcome demonstrated acceptance by patients and lower liability costs.

Published in the October edition of Health Affairs, the study evaluated communication and resolution programs (CRPs) at six Massachusetts hospitals to understand the implications of these programs on medical liability litigation.

“A key takeaway lesson is that most often, CRPs’ work involves communicating with patients about adverse outcomes that are not due to substandard care—providing the information and empathy that patients need to be able to process the event and understand that it does not merit legal redress,” wrote study author and Stanford University health law professor, Michelle Mello.

Mello and the study’s authors found that explanation and sympathy for adverse outcomes can avoid lawsuits based on misunderstanding, miscommunication, or perceived attempts to cover up issues in safety.

Their findings showed that these approaches by participating health care systems did not result in new litigation or higher costs, with proactive offers of compensation averaging just $75,000.

To read more about the Massachusetts case study and the promise these programs may hold on reforming our broken medical liability system, click here.

Arkansas grassroots group pushes for true liability reform

A grassroots group in Arkansas has kicked off an effort for a ballot initiative on a tort reform constitutional amendment, giving voters – and patients – the chance to enact real reforms of the state’s liability system.

The group, Arkansans for Jobs and Justice, includes a number of key business and health care organizations that have joined together to advocate for SJR8, the constitutional amendment that will formalize changes to the liability system.

While liability reforms were first passed in 2003, they have been invalidated piece by piece by the courts over time, leaving them ineffective in controlling costs and ensuring access to care.

“We have learned from experience that without a constitutional amendment, Arkansas will not have real tort reform,” said David Wroten, Executive Vice President of the Arkansas Medical Society. “Arkansas doctors know how important this commonsense amendment is to their patients and their families. The constant concern about frivolous lawsuits in Arkansas continues to be a significant factor in the decision of top physicians and specialists to continue to practice in or relocate to our state.”

The proposed constitutional amendment includes a $500,000 limit on non-economic damages, and caps attorney fees at a third of the total recovery, to ensure that deserving patients – not personal injury attorneys – are compensated.

To read more about the group and the amendment proposed for the November 2018 ballot, click here.