Physician advocacy reaps rewards in medical liability reform battle

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Physicians and their advocates scored important victories in Connecticut, Florida, and Georgia in working to defeat attempts to undermine past medical liability reform successes and achieving new ones.

In Connecticut, two bills introduced this session, both advocated by the plaintiffs’ bar, would have rolled back some of the state’s previously passed medical liability reform measures. House Bill 6687 sought to loosen the state’s certificate of merit law. Significantly, instead of requiring that the author of a certificate of merit be a “similar” health care provider, the bill, if made law, would have allowed the certificate of merit to be authored by a “qualified” health care provider, thereby permitting non-specialists or specialists practicing in a different area of medicine than that of a defendant health care provider to opine on the conduct of the defendant.

A related bill, Senate Bill 1154, was an attempt to amend the state’s “Accidental Failure of Suit Statute” and would have extended the statute of limitations for medical malpractice claims by granting plaintiffs another year within which to file a medical malpractice case if their original action was dismissed due to a failure to comply with the state’s certificate of merit law. Numerous physician associations, both state and national, along with hospital and insurance groups, provided testimony against these bills, and while they passed committee, neither bill was called to a vote before the end of the session, and never became law.

Meanwhile, in Florida, an important medical liability reform bill introduced this session became law with the support of physician advocacy. Senate Bill 1792 made a number of changes to Florida medical liability law, including tightening the rules related to the qualifications of experts testifying at trial against health care providers and ensuring that health care providers may consult with an attorney and discuss their care and treatment in preparation for deposition or hearing testimony or discovery requests. For causes of action accruing after July 1, 2013, no longer will plaintiffs’ experts be allowed to be from a "similar specialty" as the defendant health care provider. Rather, plaintiffs’ experts will be required to be in the "same specialty" as the defendant.

The provisions expressly permitting a health care provider to discuss his or her care and treatment in preparation for testimony or discovery came in response to a Florida Supreme Court case, which held that a pre-deposition meeting and consultation between a non-defendant treating physician and an attorney retained for her by the insurance company who also insured the defendant physician would have violated the state's patient confidentiality statutes. The new law will also permit ex parte interviews between plaintiff's treating physicians and the defendant health care provider's attorney under certain circumstances.

A novel medical liability reform measure became law in Georgia upon Governor Nathan Beal’s signing of House Bill 499. Based upon model legislation drafted by the American Medical Association, the new law seeks to protect physicians from plaintiffs using federal quality of care and payment guidelines, such as those found in the Patient Protection and Affordable Care Act, as evidence of the standard of care or negligence. The new law is similar to a bill re-introduced this year in Congress entitled, “The Standard of Care Protection Act” (H.R. 1473), currently in committee.

These successes demonstrate the importance of physician advocacy and serve as a reminder to physicians to stay engaged in both state and federal politics.

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