Medical Liability Reform

Problem

In state civil justice systems that lack reasonable limits on liability, multi-million dollar jury awards and settlements in medical liability cases have forced many insurance companies to either leave the market or substantially raise costs.  Increasingly, physicians in these states are choosing to stop practicing medicine, abandon high-risk parts of their practices, or move their practices to other states. 

ATRA's Position:

To help bring a degree of predictability and fairness to the civil justice system that is critical to solving the growing medical access and affordability crisis, ATRA recommends a medical liability reform packages that includes: (1) a $250,000 limit on noneconomic damages; (2) a sliding scale for attorney’s contingent fees; (3) periodic payment of future damages; and (4) abolition of the collateral source. 


Opposition Opinion:

The personal injury bar likes to argue that only insurance companies are to blame for the current medical liability crisis.  Pointing to significant declines in the stock market, they blame insurance companies for raising rates to make up for allegedly irresponsible investing practices.  But market fluctuations cannot fully explain the sharp increases in medical liability insurance pricing, especially since insurance companies invest only 13% of their total investments in stocks.  A better explanation of why insurance companies have raised rates is that they have had to cover the cost of increased claim payments, which have risen almost three times the rate of inflation in recent years.

Medical Liability Reform- Mediation: S. 83 (2005)

South Carolina|2005

Required that prior to filing an action, the plaintiff must

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Required that prior to filing an action, the plaintiff must file a Notice of Intent to File Suit, and the parties must participate in a court-supervised mediation.  If the matter is not resolved through mediation, the plaintiff may initiate the action within 60 days of the end of mediation or prior to the expiration of the statute of limitations, whichever is later.


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Unchallenged

Medical Liability Reform- Emergency Situations: S. 83 (2005)

South Carolina|2005

Provided that a physician is not liable for claims arising

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Provided that a physician is not liable for claims arising out of an emergency situation unless the physician was grossly negligent.  Provided that a physician is not liable in a claim arising out of obstetrical care rendered in an emergency situation where there is no previous doctor/patient relationship or where the patient has not received prenatal care, unless the physician was grossly negligent.


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Unchallenged

Expert Witness Standards Reform: S. 83 (2005)

South Carolina|2005

In an action against a professional (such as physicians, medical

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In an action against a professional (such as physicians, medical professionals, architects, CPAs, etc.), increased the standard for admitting expert witness testimony by defining an expert witness as one who: (1) is qualified as to the   acceptable standard of conduct of the professional whose conduct is at issue; (2)   is licensed by an appropriate regulatory agency; (3) is board certified; and (4) has actual professional knowledge based on active practice for at least three to five years, has taught for at least half of his professional time for at least three to five years, or any combination thereof for at least three to five years.  In such actions against a professional, the plaintiff must file an affidavit of an expert witness   which specifies at least one negligent act or omission and the factual bases for each claim, unless the basis of the claim does not require specialized knowledge or experience to evaluate the conduct of the defendant.  Provided that in any other civil action, expert witness is defined as one who has scientific, technical, or other specialized knowledge which may assist the trier of fact in understanding         evidence and determining a fact or issue in the case.


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Unchallenged

Joint and Several Liability Reform: Medical Liability: S. 83 (2005).

South Carolina|2005

Specifies that if there are multiple defendants in a civil

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Specifies that if there are multiple defendants in a civil action, joint and several liability does not apply to any defendant 50 percent or less responsible for the damages.  Furthermore, specified that comparative fault is included in the calculation of total fault in the case.  If the plaintiff is found to be greater than 50 percent responsible for the total fault, then the plaintiff is completely barred from recovering damages.  A defendant found to be less than 50 percent responsible is only responsible for its proportional share of damages based on its percentage of liability.  Retained the right of the “empty chair” defense where a defendant retains the right to assert that another potential tortfeasor, whether or not a party,  contributed to the alleged damages and may be liable for any or all damages alleged by another party.


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