KEY MEDICAL PROVISIONS

ON HB 2661*

     HB 2661, the tort reform bill, is a 90 plus page act with numerous provisions related to medical malpractice cases.  While the bill is not as strong as Governor Henry’s proposed legislation, the act has important new measures for the health care industry.  As with all major legislation, the tort reform bill was a negotiated package.  There are no parties involved in this process that are completely happy with the final version.  It is important to remember that the trial bar did not want any bill. 

     Following are provisions important to health care:

·         CAP ON NON ECONOMIC DAMAGES – Clearly, this was the most contentious part of negotiations.  The $300,000 cap for obstetrics and cases originating in the emergency room that passed last year is NOT changed, but its provisions have been extended to 2010.  The bill also provides for a cap of $300,000 across the board in all other medical liability actions that applies per case, NOT per defendant.  The application of the cap is complicated, but some of the hurdles will make it more difficult to lift.  In order for the cap to apply, the defendant must have made an offer of judgment and the amount of the verdict must be less than one and one-half times the amount of the final offer of judgment.  In the event the offer of judgment criteria is satisfied, the JUDGE must make a threshold determination that there is evidence from which a jury could reasonably make a finding that the defendant committed negligence by CLEAR AND CONVINCING EVIDENCE (a lower preponderance of the evidence standard is usually used in malpractice cases).  If the judge makes this determination, then three additional questions are submitted to the jury.  Nine of the twelve jurors must answer the questions in the affirmative before the cap will be lifted.  As with last year’s caps, the new caps will sunset after six years.  This will require a positive action to extend the caps or make changes.  The legislature may also change this cap section, or any other provision of this law, at any time.

·         VENUE – Venue will be limited to the county where the cause of action arose or in any county where any defendants reside, or in the case of a corporation, in a county in which it is situated.  Upon a finding of lack of venue, a court must transfer or dismiss the case.

·         JOINT & SEVERAL LIABILITY - A party can only be held 100% liable for an award if it is determined the party had at least 51% contribution to the liability.  Otherwise the party can only be held liable for their proportionate percentage below 51%.

·         DISMISSAL – A plaintiff no longer has the discretion to dismiss a medical liability action after a trial has started.  This change will significantly help with defense costs.

·         EXPERT WITNESS CRITERIA – An expert witness in a medical liability action must be licensed to practice medicine or have other substantial training or experience in any area of health care relevant to the claim and is actively practicing or retired from practicing health care in any area or health care services relevant to the claim.  If the court lifts these criteria, the reason for the court’s decision must be stated in the record.

·         ABUSIVE DISCOVERY, PLEADINGS, & FRIVOLOUS LAWSUITS – The definition of “frivolous” is clarified and the statutes relating to sanctions for abusive discovery and frivolous lawsuits have been strengthened.

·         I’M SORRY LAW – This provision permits physicians to express condolences to patients and their relatives regarding a bad outcome without having that statement used as evidence of an admission of liability.  Expressing condolences and expressing empathy to patients has been determined to reduce the number of lawsuits filed.

·         VOLUNTEER MEDICAL PROFESSIONAL SERVICE IMMUNITY ACT – Any volunteer medical professional shall be immune from liability in a civil action on the basis of any act or omission of the volunteer medical professional resulting in injury if the services were provided at a free clinic and if certain other conditions are met.  In addition, if a volunteer medical professional refers a patient to another physician, the consulting physician also receives immunity if certain conditions are met (e.g., the patient must sign a written statement acknowledging that the physician is acting as a volunteer and that immunity applies).

·         MUTUAL MORATORIUM – There has been much misinformation reported on this topic.  First, there is no language in the bill barring any future tort reform efforts by our legislative leaders.  The Oklahoma Trial Lawyers Association, the Oklahoma Hospital Association, the Oklahoma State Medical Association, and the Oklahoma Association of Health Care Providers have signed a gentleman’s agreement that there would be no detrimental action taken by any party for six years.  In the event that changes are needed in this law, it will be required that the above named parties will meet to negotiate necessary changes.  If it is determined that any provision of SB 629, passed in the 2003 session, or HB 2661 is declared unconstitutional or negatively impacted, the agreement would be void. 

·         18 MONTH MORATORIUM ON CAPITAL & SURPLUS REQUIREMENTS FOR PLICO & HCC – This provision, effective 7-1-04, establishes an 18 month moratorium for the Insurance Commission to impose additional financial requirement on both of these companies.  It is expected that HCC will move forward with the current recapitalization plan that is on file with the Insurance Commission.

·         MEDICAL LIABILITY TRUST ACT – This provision will allow HCC and PLICO to convert to a trust to offer medical liability to members.  The trust may be established by the end of the 18 month moratorium. At this time, HCC has no interest in forming a trust. 

*Prepared by the Oklahoma State Medical Association and supplemented by the Oklahoma Hospital Association.