Category Archives: Oregon

May 2019 Newsletter

Minnesota liability ruling trends towards dangerous precedent for patients Setting a troubling precedent that could limit collaborative patient care efforts, the Minnesota Supreme Court recently ruled in favor of expanding liability and opening the door for an increase in medical lawsuit abuse. In mid-April, the Court issued a ruling case of Warren v. Dinter, reversing precedent and stating that the existence of a physician-patient relationship was not a prerequisite for bringing forth a medical liability lawsuit. The Court declared that legal actions could proceed if the harm suffered by an individual — even if they were not considered a patient of the physician — was a “reasonably foreseeable consequence” of the physician’s actions. Supporting the defendant were the American Medical Association (AMA), Minnesota Medical Association (MMA), and the Minnesota Hospital Association (MHA), on the basis that this new precedent could expose physicians and other health professionals to expanded liability risks in situations that were previously protected, including unbilled consultations, and discourage collaboration. “The overall expansive language in the Court’s opinion does raise concerns,” said Mark Fogg, general counsel of COPIC, MMA’s endorsed medical professional liability insurance provider. “We respectfully believe that it is important that a physician-patient relationship be established…

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Badly injured Oregonians urge lawmakers to eliminate $500k limit on lawsuits seeking pain-and-suffering compensation

SOURCE: The Oregonian It took nearly six years for Zeferino Vasquez to find out if he would get to keep the $6.2 million that a jury awarded him after he was paralyzed when an agricultural machine he was fixing suddenly flipped on and nearly squeezed the 21-year-old to death. Vasquez’s legal limbo ended last month when the Oregon Supreme Court ruled that a state cap on noneconomic damages didn’t apply in his case. He was due the full amount, the court ruled. His case had been tied up in the vast debate over an Oregon law that limits payouts to no more than $500,000 for pain and suffering, also known as noneconomic damages. The Legislature enacted the law 32 years ago, but it has a tortured history. The state Supreme Court has gone back and forth on whether the cap abides by the Oregon Constitution. A landmark 2016 ruling, Horton v. OHSU, appeared to reinstate the cap. But exceptions have been carved into case law and today uncertainty hangs over when the cap applies. State lawmakers are again considering whether it’s time to settle this long-standing issue by explicitly writing the cap out of existence. They tried two years ago…

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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…

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AMA’s legal team helps protect medical liability reforms

Medical liability reform is a high state legislative priority for the AMA. Not surprisingly, then, it is also a high priority for the Litigation Center for the American Medical Association and State Medical Societies. Evidence of this is the Litigation Center’s involvement in five active tort reform-related cases before the state Supreme Courts of Kentucky, Michigan, Nevada, Oregon and Texas. And evidence of the Litigation Center’s success is the recent Wisconsin state Supreme Court 5–2 ruling that the state’s $750,000 cap on awards for noneconomic damages did not violate the state constitution. The Wisconsin cap on noneconomic damages is one component of a three-part strategy that has stabilized the state’s medical liability environment. The three elements are: A requirement for most physicians to carry $1 million in liability coverage per occurrence and $3 million in aggregate. The Wisconsin Injured Patients and Families Compensation Fund, which is financed via assessments (based on actuarial risk) charged to physicians, clinics, hospitals and other participants and covers all damages above the primary insurance limits. The $750,000 cap on noneconomic damages. Many caps, few guarantees Wisconsin and 30 other states have a cap on noneconomic damages. But the Dairy State is one of just a…

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December 2017 Newsletter

Year-end report sheds light on “Judicial Hellholes” The American Tort Reform Association (ATRA) end-of-year “Judicial Hellholes” report offers a public glimpse at the most unfriendly jurisdictions for those defending themselves against civil litigation, including medical liability lawsuits. At the top of the list this year was Florida, where once-strong medical liability reforms have been continuously rolled back at the expense of patients seeking affordable and accessible care. “This year, thanks to a state high court majority’s barely contained contempt for the policy-making authority of the legislative and executive branches of government, and a notoriously aggressive and sometimes lawless plaintiffs’ bar, Florida earns the ignominious #1 ranking among eight Judicial Hellholes…” said American Tort Reform Association president Tiger Joyce. Also high on the list was St. Louis, where “antiquated rules have made it a favorite of personal-injury lawyers shopping for big-money verdicts” resulting in $300 million in awards since 2015. However, recent changes in state government, including a governor in support of changes to the liability system, do hold promise for much-needed reform in the coming year. To read more about ATRA’s “Judicial Hellholes” executive summary and report on the where physicians and defendants fare the worst when it comes to…

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Top cases show physicians had a forceful ally in the courts

One thing physicians from Florida to Hawaii had in common in 2017 was that the Litigation Center of the American Medical Association and State Medical Societies had their backs. The Litigation Center was involved in legal battles that helped prevent an insurance mega-merger, protected physicians’ right to free speech, and fought back on multiple fronts against attempts to sidestep or peel back established state liability reforms. But it was a case involving the staff at a hospital in rural California that may have attracted the most attention. Case signaled threat to end medical staff independence in California. In Tulare Regional Medical Center Medical Staff v. Tulare Local Healthcare District et al, the Litigation Center provided significant legal and financial support after the hospital’s board of directors voted to terminate the medical staff organization, remove elected medical staff officers, install a slate of appointed officers and approve new medical staff bylaws and rules without staff input. “This case serves as an existential threat to independent hospital medical staffs,” said Long Do, California Medical Association (CMA) legal counsel and director of litigation. Just before closing arguments were scheduled in October, Tulare filed for Chapter 9 bankruptcy. As part the process, the hospital…

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High Court’s Contempt for Lawmakers’ Authority, Lawsuit Rackets Place Florida atop Latest ‘Judicial Hellholes’ List

WASHINGTON, D.C., December 5, 2017 – The American Tort Reform Foundation issued its 2017-2018 Judicial Hellholes® report today, naming courts in Florida, California, Missouri, New York, Pennsylvania, New Jersey, Illinois and Louisiana among the nation’s “most unfair” in their handling of civil litigation. “With both this annual report and a year-round website, our Judicial Hellholes program since 2002 has been documenting troubling developments in jurisdictions where civil court judges systematically apply laws and court procedures in an unfair and unbalanced manner, generally to the disadvantage of defendants,” began American Tort Reform Association president Tiger Joyce. “This year, thanks to a state high court majority’s barely contained contempt for the policy-making authority of the legislative and executive branches of government, and a notoriously aggressive and sometimes lawless plaintiffs’ bar, Florida earns the ignominious #1 ranking among eight Judicial Hellholes, even as authorities have begun to crack down on some of the lawsuit industry’s most obviously fraudulent rackets. “Ranked #2 is perennial hellhole California, where lawmakers, prosecutors and plaintiff-friendly judges inexorably expand civil liability at the expense of businesses, jobseekers and those desperately in need of affordable housing,” Joyce explained. “The good news is the U.S. Supreme Court in June reversed a…

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May 2017 Newsletter

  Liability reform cited as major savings in President’s budget With an emphasis on deficit reduction, the President’s 2018 budget highlighted how medical liability reform can lead to improved fiscal health. Cited as resulting in major savings and reform, medical liability reform is noted in the President’s budget as necessary due to the fact that “the current medical liability system does not work for patients or providers, nor does it provide quality, evidence-based care,” budget language states. The liability reform proposal in the budget contains proven state reforms that have lowered costs and increased access to care in states such as California, Texas, West Virginia, and Ohio. This allows for deficit reductions of $55 billion over 10 years upon passage of a bill that contains reasonable limits on non-economic damages of $250,000 (increasing with inflation), a three-year statute of limitations, and modifications on attorney’s fees to ensure deserving patients – not personal injury lawyers – benefit from liability judgments and settlements. To review the medical liability reform proposal contained within the President’s budget, click here. Panel discussion yields insights into future of liability reform Taking part in a legal panel on the future of medical liability reform, HCLA chair Mike…

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Oregon Court Ruling Opens Avenues for Defensive Medicine, Lawsuit Abuse

The Oregon Supreme Court on Thursday revived a patient’s medical malpractice suit accusing a hospital and doctors of depriving him of a chance of a full recovery from a stroke, saying such “loss of chance” theories are fair game in medical negligence cases. The state’s highest court unanimously overturned the dismissal of a suit alleging Drs. Linda L. Desitter and Michael R. Harris and Providence Hood River Memorial Hospital failed to properly follow up on patient Joseph Smith’s complaints of stroke symptoms which robbed him of a one-third chance at a full recovery in cases like his, had he received timely and proper treatment. The justices said in the context of Oregon common-law medical malpractice claims, loss of chance of a better medical outcome is itself a type of injury, rejecting the defendants’ arguments that such a ruling would be an improper relaxation of standards regarding causation, or that a health care provider’s alleged negligence caused a patient’s injury. “When the lost chance is the injury in a medical malpractice action, the plaintiff still bears the burden to prove that, more likely than not, the defendant’s negligence caused the plaintiff to lose the chance of a favorable medical outcome,” the…

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Does your physician have to prescribe antibiotics for every sore throat?

With the right medical malpractice reforms, physicians can reinforce high quality care and provide cover for those who don’t want to prescribe antibiotics for every sore throat. There is a lot of jockeying ahead of the Supreme Court’s decision on the Affordable Care Act. Beyond posturing and heated rhetoric, there is a health care issue the two parties can work together on rather than blame each other: medical malpractice. It is clear there is support for reform. Republicans have long argued for reform. President Obama has been a consistent advocate for it. In 2006, he co-authored an article in the New England Journal of Medicine with Hilary Clinton and introduced legislation on the matter, and he launched several demonstration projects for reform. And doctors desperately want it and remain befuddled and upset about why malpractice reform never made it into the Affordable Care Act. So there is ground for optimism. And we desperately need reform. By every metric, the malpractice system is dysfunctional. For many physicians in high-risk specialties, such as cardiac and neuro-surgery, no matter what they do there is essentially a 100% chance they will be sued at some point during their career. Even so-called low-risk specialties, such…

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