Fresh off two wins this legislative session, tort reform advocates continue to work toward a ballot measure they hope could lead to caps on non-economic damages in medical malpractice cases.

The Arizona Medical Association (ArMA) is working on wording for such a measure and raising money in the medical community for a campaign that could cost up to $6 million, said David Landrith, ArMA vice president of policy and political affairs.

He said there are several options for a ballot proposition to deal with the rising cost of medical malpractice insurance, including simply repealing provisions in the Arizona Constitution that prohibit limits on awards for personal injury or death. It also has not been decided when to go to the voters and how — through a legislative referendum or public initiative. The Legislature put off the idea of pursuing a referendum for 2006 early in the session.

If a malpractice measure makes it to the ballot, it will set up an expensive battle between proponents of malpractice reform and trial lawyers. ArMA has raised around $400,00, Landrith said.

Jon Hinz, director of Fairness and Accountability in Insurance Reform (FAIR), which is funded by the Arizona Trial Lawyers Association, said the two organizations have not raised any money. Trial lawyers have argued that caps on medical malpractice damages will not reduce malpractice insurance rates.

“We’re always ready to go into a fund raising mode,” he said. “I’m a little dismayed that they don’t even have a ballot position. I don’t understand why they’re going forward with this. If we see something begin on this, we will kick it into gear, and they will have the fight of their lives.”

About a ballot proposition on caps, Sen. Robert Cannell, D-24, a Yuma pediatrician, said, “We better have our ducks in a row, and we better have the will because there’s going to be a huge fight.”

S1036 Signed

On April 25, Governor Napolitano signed, with reservations, the medical malpractice procedures bill (S1036) that says an apology for a medical mistake or unanticipated outcome may not be used in court as an admission of liability by a health care provider.

Democrats traditionally side with trial lawyers against tort reform legislation, but 50 per cent of them voted in favor of the bill, which was stripped of a controversial provision that would have permitted a defendant to interview the plaintiff’s health care providers, without permission of the plaintiff.

The governor warned that part of the bill that redefines qualifications for expert witnesses in malpractice cases has questionable legal foundation.

Ms. Napolitano said the apology, or “I’m sorry” provision will reduce the number of claims against doctors, hospitals and other health care providers.

“I predict that this simple law change will lead to some patients ultimately choosing not to file malpractice lawsuits in response to an adverse outcome,” she said. “I am concerned, however, by the effort in this bill to restrict expert witness testimony… While I fully support the notion that only qualified medical professionals should be allowed to testify as experts in malpractice actions, I believe our courts, not the Legislature, are charged with making expert witness determination.”

Goal: Get Doctor And Patient Talking

Dr. James Carland, president and CEO of the Mutual Insurance Company of Arizona, which insures the majority of physicians in Arizona, said the apology provision is going to be beneficial.

“The principal goal is to get the doctor and patient talking to one another,” he said.

Mr. Carland said he would urge physicians to immediately talk sympathetically with patients and families when treatment does not turn out as planned, but not to “over commit themselves” if they don’t know what happened.

Mr. Cannell said that malpractice insurers that, despite the new law, might insist their clients call them before making an apology would defeat the purpose of the bill, which takes effect 90 days after the current legislative session ends.

The bill, “could have a major impact on the number of lawsuits filed, and will lower the cost of malpractice. Arizona rates are based on the number of suits and judgments,” Mr. Cannell said. “If you’re honest with patients, and they really know what happened, they’re much less likely to sue.

“The expert witness thing is making docs feel like the system is more fair,” he said. “It will make it harder for a plaintiff’s attorneys to find expert witnesses, but there’s pretty fertile ground at the medical schools and teaching programs for qualified witnesses.”

Sen. Carolyn Allen, R-8, sponsor of S1036, says both provisions in the bill are equally important procedural reforms.

“I know the press has been calling this the ‘I’m Sorry bill,’ and that is important to the patients as much as the doctors, but the doctors are very pleased and the [ArMA] is convinced this [expert witness provision] is going to help them,” she said.

As far as caps on non-economic damages, Ms. Allen said a cap should be set at least at $500,000 to get voter approval. She added that overall insurance reform is needed to stop the increases in malpractice premiums.

“It’s something to think about over the summer,” she said.

Ms. Napolitano has also signed S1251 that, among other things, limits plaintiff’s attorney fees in elder abuse cases from exceeding twice the amount of compensatory damages awarded. —