November 2019 Newsletter


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  • November 26, 2019

Iowa’s liability climate is changing – for worse

The Iowa Medical Society (IMS) highlighted how the state’s medical liability climate is shifting and threatening access to care in the Fall edition of Iowa Medicine.

In 2017, a series of reforms including certificate of merit and expert witness requirements were implemented to drive down the number of meritless lawsuits filed in the state. Unfortunately, at the time, reasonable limits on non-economic damages were included only as a “soft cap,” allowing the limit to be waived by a jury in certain instances.

MaryGrace Elson, MD, MME, FACOG, President of IMS and an OB/GYN from Iowa City, highlights the outcome of the soft cap in the edition’s feature story, “Our Medical Liability System in Crisis.”

“In the past three years, Iowa’s medical liability climate has shifted dramatically,” she notes. “… Iowa’s trial bar has begun cherry-picking cases where there is no dispute that a medical error occurred. Employing questionable tactics that play to juries’ emotions and drive up award expectations, we have seen a string of high-dollar verdicts against physicians and facilities.”

Over the past two years, just five lawsuits have led to awards of $63 million in noneconomic damages, and impacted patient access to care.

“One of the rural facilities involved in a high-dollar obstetrical judgment even made the difficult decision to close its obstetrical unit,” Elson writes.

IMS expects to make limits on non-economic damages a focus of its 2020 legislative agenda. To read Dr. Elson’s column in full, click here.

Pennsylvania court ruling removes limits on liability lawsuit filings

A medical liability law in Pennsylvania giving patients a seven-year window to file a lawsuit has been struck down as unconstitutional.

The statute, part of Pennsylvania’s Medical Care Availability and Reduction of Error (MCARE) Act passed in 2002, permitted a patient seven years to file a lawsuit. After seven years, the statute of repose barred the patient’s action.

The Pennsylvania Supreme Court struck down the statute, by a vote of 4-3, in the case of Yanakos v. UPMC, et al.

One of the dissenting justices wrote that the decision of the majority flouted the Legislature’s policymaking authority and that “it is not this court’s role to upend duly enacted legislation simply because we might sometimes deem it imperfect or unwise.”

Without a statute of repose, medical professionals and liability insurers face potential exposure for claims long after treatment is rendered. This uncertainty leaves physicians constantly in fear of a liability lawsuit, even decades after treating a patient.

Click here to read more about the ruling and its impact on Pennsylvania physicians and patients.

Connecticut liability payouts hit new highs

The increase in payouts for medical liability damages hit new highs in 2018, leaving Connecticut physicians worried for the future of health care in the state.

Last year, $262.6 million was paid to patients who made liability claims – a 33 percent, or $65.7 million, increase over 2017. The payout was the highest since the state started tracking such data.

The average amount paid to each patient jumped sharply, too. After staying below $700,000 for the prior five years, the average increased to $985,000 in 2018.

Heath care leaders in the state suggest further issues are on the horizon.

“When you see the average payment go up by more than $300,000 that’s why we’re probably going to start seeing increases in liability rates,” said Ken Ferrucci, senior vice president of government affairs for the Connecticut State Medical Society.

Physicians are witnessing the issue firsthand. Dr. David Emmel, an opthamologist, has been a solo practitioner in Connecticut for thirty years. After relatively stable premiums, he was hit this year with a 10 percent increase in liability premiums, with no history of being sued.

Without substantive changes to the state’s medical liability laws, including reasonable limits on non-economic damages, physicians and patients may face prohibitive costs – making it harder to provide and access care.

To read more about the troubling trends in Connecticut, click here.