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2011 Summary of State Medical Liability Laws
OMIC is one of only a handful of medical malpractice insurance carriers operating in most American state legal jurisdictions. As a national carrier we must negotiate a wide range of liability laws and statutes that provide varying degrees of legal protections for our policyholders.
Below is a summary of 2011 state medical liability/medical malpractice laws in the United States:
- Damage Award Limits or Cap – 15 jurisdictions do not have a damage award limit or cap, 37 jurisdictions have a limit or cap. Connecticut and Minnesota allow for a court to review of the damage awarded, but does not specify a specific limit or cap.
- Statute of Limitation– All states have statutes of limitation for medical liability/malpractice claims. Thirty-six states, Puerto Rico and the Virgin Islands have special provisions for malpractice claims filed by minors. Twenty states have special provisions regarding foreign objects.
- Joint and Several Liability – 27 jurisdictions allow for joint and several liability (13 regular, 14 modified), California has modified joint liability, 18 jurisdictions have several liability, seven jurisdictions have modified several liability and the District of Columbia provides for joint and several liability for compensatory damages and several liability for punitive damages.
- Limits on Attorney Fees – 28 states have provisions that place limitations on attorneys’ fees. 12 states, Guam and Puerto Rico sliding fee schedules.
- Periodic Payments – Regarding periodic payments: 30 jurisdictions either allow or require periodic payments for damages associated with medical liability or malpractice cases. Statutes in Alabama, Arizona, Arkansas, Georgia and New Hampshire have been held unconstitutional.
- Patient Compensation or Injury Fund – 13 states have provisions allowing for a patient compensation or injury fund. Oklahoma has created a Health Care Indemnity Fund Task Force.
- Doctor Apologies/Sympathetic Gestures – 36 states, the District of Columbia and Guam have provisions allowing medical professionals to make apologies or sympathetic gestures.
- Pre-trial Alternative Dispute Resolution and Screening Panels – 27 states, the District of Columbia, Guam and Puerto Rico have specific provisions providing for alternative dispute resolution (arbitration, mediation or settlement conferences) in medical liability or malpractice cases. 17 jurisdictions—Alaska, Delaware, Hawaii, Idaho, Indiana, Kansas, Louisiana, Maine, Massachusetts, Montana, Nebraska, New Hampshire, New Mexico, Utah, Virginia, the Virgin Islands and Wyoming—have requirements that medical liability or malpractice cases be heard by a screening panel before trial.
- Affidavit or Certificate of Merit – 22 states have requirements for filing an affidavit or certificate of merit in order for a medical liability/malpractice claim to move forward.
- Expert Witness Standards – 31 states have provisions regarding minimum qualificiations for expert witnesses who testify in medical malpractice/liability cases.
- Medical or Peer Review Panels – All but three jurisdictions—New Mexico, New York and Puerto Rico—have provisions regarding medical or peer review panels.
Click here for a NCSL (National Conference of State Legislatures) summary of medical liability laws for your state/jurisdiction.
During 2011, 42 states introduced medical malpractice tort legislation. Proposals covered everything from award caps to limits on attorney fees. See below for full list:
- Damage award limits or caps
- Statute of limitation
- Joint and several liability
- Limits on attorney fees
- Patient compensation or injury fund
- Pre-trial alternative dispute resolution and screening panels
- Affidavit or certificate of merit
- Expert witness standards
- Medical or peer review panels
- Insurance premiums
Follow this link for a complete list of 2011 legislative actions.
OMIC Claim Process:
When a claim is filed against one of our insureds, an ophthalmologist on OMIC’s Claims Committee will examine medical liability to help the legal team devise a plan for (1) vigorous defense of the claim or (2) quick action if settlement is advised and the policyholder provides consent. Our attorneys will examine legal options and tort protections as part of a multi-faceted strategy for defense.
OMIC has an established panel of leading defense firms that are generally based within the jurisdiction and familiar with the local legal environment. We require that our firms appoint only partners with at least ten years of medical malpractice defense experience to represent our insureds.
