September 2020 Newsletter

Oregon court errs in liability ruling

The Oregon Supreme Court has ruled against the state’s limits on non-economic damages for personal injury cases, with the state’s wrongful death cap remaining, putting an attractive place to practice medicine in limbo.

Initially enacted in 1987, the reasonable limit of $500,000 on non-economic damages was found unconstitutional in 1999, but reinstated when the court overruled itself in 2016, before again changing its mind this year. This roller coaster ride created significant uncertainty for patients and physicians alike.
The Litigation Center of the American Medical Association and State Medical Societies, the Oregon Medical Association (OMA) and the American College of Obstetrics and Gynecologists (ACOG) filed an amicus brief with the court urging the limits be maintained.

“While physicians continue to provide quality healthcare to their patients as they have done for centuries, the burdens on the profession continue to increase. No one does their best work while under duress and physicians are no exception. For all patients to be able to receive quality health care and for our medical system to continue functioning, there must be reasonable limits on liability,” the brief stated.

Unfortunately, the court ruled in a different direction. In striking down the limit as part of a liability lawsuit that had no relation to medical liability, the court acknowledged that “we have no doubt that [the statute] was intended to reduce insurance costs and improve insurance availability.”

Now, Oregon patients and physicians face an environment where meritless lawsuits and shortages of health care professionals could grow as loopholes and new liability theories are introduced. To read more about the error in Oregon and the implications for patients and physicians, click here.

Federal update on COVID-19 legislation

Earlier this month, a second COVID-19 stimulus package that included liability protections was blocked from progressing in the U.S. Senate.
But an opportunity remains to express your support for legislation that protects those at the frontlines of the COVID-19 pandemic.

Protect Patients Now encourages grassroots supporters to continue to reach out to their Senators to urge them to sign on to S. 4317, the SAFE TO WORK Act.

The SAFE TO WORK Act creates a federal cause of action for COVID-19 litigation, establishing a stable and uniform system for dealing with claims arising from the pandemic. The bill also creates much-needed standards for establishing medical liability in those cases, helping to deter the anticipated barrage of COVID-19 litigation against the healthcare community. In short, this legislation will reduce medical lawsuit abuse and provide desperately needed protections for healthcare providers and facilities that cannot be guaranteed by state action alone.
Click here to visit the Protect Patients Now Action Center and send a message to your Senators today.

Without action on COVID-19 protections — what comes next?

Highlighting the lack of progress on federal protections for COVID-19 providers, an opinion piece in Law360 responds to inaccuracies and the risk of inaction.

Michael Feeney, an attorney shareholder at Matis Baum O’Conner, responds to claims that such protections for health care providers apply broadly to all liability lawsuits and would continue forever. “The SAFE TO WORK Act only applies to coronavirus-related cases, and has a built-in expiration date,” Feeney writes.

He also brings to light just how aggressive personal injury attorneys have been to date.

“Already, nearly 5,000 coronavirus-related lawsuits have been filed across the nation,” Feeney states. “In the absence of safe harbor legislation to protect our health care providers, we are likely to suffer an ever-expanding tsunami of coronavirus-related medical liability actions over the next several years. This could have a devastating effect on the cost of medical liability insurance and, as a result, the cost and availability of health care overall.”

While federal legislation that provides uniform protections is the ultimate goal, much can be gained on behalf of our health care heroes if states act through legislation as well, versus executive actions “that will undoubtedly be challenged.”

“States should not wait for action at the federal level. If the SAFE TO WORK Act is passed, it will preempt state laws that provide fewer liability protections, but not those that provide more,” the opinion piece concludes.

To read more about how to pay the debt of gratitude to health care providers through protections for meritless liability lawsuits, click here.