Tort Law

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Please see response file attached for best formatting, which is also presented below. I also attached an example of a case that was in violation of tort law. I hope this helps and take care.

RESPONSE:

I will address your questions in the order that you presented them.

1.Can you please describe a violation of tort law that you are aware of or have been witness to in regards to long-term care or at least the health care field? Your example should be at least in negotiation of settlement stage or ready for trial.

The case that we will discuss is one of medical malpractice. Prior to looking at the specific case, then, let's look briefly at some background information.

Medical Malpractice: Tort Reform

BACKGROUND

Many questions surround the origins of the escalating cost of medical malpractice coverage. Insurers and health providers claim excessive litigation and overly generous jury awards have hardened the market. The American Trial Lawyers Association and consumer advocacy groups claim insurance premium rates have not tracked medical inflation or the payouts of jury awards over the last 30 years. The American Medical Association has declared a state of emergency for several states in which no or little controls have been implemented to cap jury awards. Physicians are not only challenged with obtaining and retaining medical liability coverage, but also with receiving coverage adequate to protect them in the event of a suit. With the complexities and variety of coverage plans, physicians often are unaware that gaps in coverage may exist. Most states have some form of base coverage requirements, whether provided through an employer or issued to an individual practitioner.
The American Academy of Actuaries Work Group conducted a study of the various elements that may have some success of stabilizing the market. Their recommendations include a cap on noneconomic damages and an offset for collateral payments from other sources. The belief is that these reforms would limit the financial exposure of health care providers to lawsuits and ensure that damages would not be collected through multiple suits. Many states have placed limitations on a variety of damages, however several states simply do not allow the insurability of certain types of punitive damages. In these cases, even if an insured's plan covers payment for punitive damages the state law prohibits the coverage.

In response to the call to press forward with malpractice reforms, legislators in 34 states-Alabama, Arkansas, Arizona, Colorado, Connecticut, Florida, Hawaii, Idaho, Illinois, Indiana, Kentucky, Maine, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Virginia, Washington, West Virginia and Wyoming-considered a variety measures to change existing systems during the 2003 session.

Of these 34 states, 11 have enacted laws of varying degrees concerning liability for damages. Arkansas legislators enacted legislation that amends the requirement for burden of proof on an action for medical injury. The plaintiff must use expert testimony provided only by a medical care provider of the same specialty as the defendant.

Florida Governor Jeb Bush (R) signed into law a compromise medical malpractice bill. Bush said the bill's caps on jury awards for noneconomic damages will "have a calming effect" on rising malpractice premiums and physicians' leaving the state because of high premium rates. On Aug. 13, the House of Representatives voted 87-26 to approve the bill, and Senate voted 32-4 to pass it. The bill's passage came after six months of negotiations and three special legislative sessions. Under the bill, the state will cap noneconomic damages in malpractice lawsuits against individual physicians at $500,000 and at $1 million in lawsuits against multiple physicians. The cap in lawsuits against individual physicians could increase to $1 million in cases of severe malpractice. The legislation would cap noneconomic damages in malpractice lawsuits against hospitals and other health care facilities at $750,000 and at $1.5 million in lawsuits against multiple facilities. The cap in lawsuits against individual facilities could increase to $1.5 million in cases of severe malpractice. In addition, the bill would cap noneconomic damages in malpractice lawsuits against individual emergency room providers at $150,000 and at $300,000 in lawsuits against multiple providers. The legislation also freezes malpractice insurance premium rates in the state from July 1, 2003, through Jan. 1, 2004, and requires insurers to reduce premiums thereafter based on state cost savings estimates under the new law. Hospitals and physicians will be required to adopt patient safety plans and to inform patients when they experience injuries. The new law also defines physicians' right to file "bad faith" lawsuits against their insurers, allows physicians to form self-insurance funds, and details new error reporting and physician discipline guidelines.

Legislators in Idaho enacted House Bill 92, which among other provisions, repeals exceptions for cause of action from the manufacture of any medical device or pharmaceutical products. It reduces the maximum allowable award for noneconomic damages in actions for personal injury from $400,000 to $250,000, but provides for an increase or decrease beginning July 1, 2004 adjusted by the Idaho Industrial Commission. In addition, judgments for punitive damages are not to exceed $250,000 or an amount that is three times the compensatory damages. In addition, legislators repealed the exceptions for a cause of action from the manufacture of any medical device or pharmaceutical products. The law also reduces the maximum allowable award for ...