This year was an exceptionally busy one for the state legislatures. As January 2013 trundled in, the majority of state legislatures went to work almost immediately on a host of issues related to state budgets, state finances, health care, and an array of other issues. In an average year, state legislatures may consider a combined total of anywhere from 150,000 to 180,000 pieces of legislation, which is significantly more than the number of bills that are introduced in the U.S. Congress.
The American College of Surgeons (ACS) uses an online service to identify and monitor state legislation that affects surgical care. ACS State Affairs follows the overall legislative priorities of the College, which include medical liability reform, quality/patient safety (scope of practice, injury prevention), workforce/surgical practice (Uniform Emergency Volunteer Health Practitioners Act [UEVHPA], trauma system funding and development), and physician payment (physician/cosmetic surgery taxes). Legislation of interest may also be communicated to State Affairs by Fellows, chapter members, and representatives of national surgical specialty societies that also are interested in a particular issue. In 2013, more than 1,900 such bills were introduced in the states, although most of them stalled early on in the legislative process.
This article gives readers a sense of the spectrum of state legislation, regulation, and judicial rulings from across the country by providing highlights of actions taken in certain issue categories.
Medical liability reform
The legislature considered a number of resolutions that would amend Arkansas’ constitution to address various elements of tort reform. One resolution included the following requirements: individuals who file a lawsuit that is dismissed as frivolous must pay court costs up to a certain amount; expert witnesses must be of the same specialty as the defendant; a certificate of good faith must be filed with the complaint; a suit cannot commence until at least 60 days after written notice of claim for medical injury has been served; and punitive damages are limited to no more than nine times the amount of compensatory damages. Proving that liability reforms are difficult to enact, none of the resolutions went forward but will likely be reintroduced in 2014.
California’s Medical Injury Compensation Reform Act (MICRA), which has helped to keep liability premiums in check since 1975, is under threat with the introduction of California Ballot Initiative 13-0011, the Troy and Alana Pack Patient Safety Act of 2014. The proposal was filed in late July by Robert S. Pack and Consumer Watchdog and calls for raising the cap on noneconomic damages to $1.1 million from the current $250,000—the same amount as the original limit. In addition, this initiative would require physicians to do the following:
- Check a prescription drug tracking database before prescribing controlled substances
- Undergo mandatory drug and alcohol testing after an unexpected death or injury occurs
- Report any witnessed medical negligence or substance misuse by other physicians
- Undergo random drug and alcohol testing
- Be placed on automatic suspension if testing positive for alcohol or drugs while on duty
The Consumer Attorneys of California supports this measure whereas the California Medical Association, California Hospital Association, and Civil Justice Association of California oppose it. More than 504,000 valid signatures will be required for the initiative to qualify for the 2014 ballot. Since its inception, MICRA has been under attack from legal and attorney groups. Should this measure make the ballot, it is expected to be expensive to defeat.
In May, Georgia became the first state to enact provider shield legislation. Under the new statute, a barrier is created between physicians and public or private payor guidelines that could be used as evidence in medical liability lawsuits. Evidence related to the public and private payor guidelines will be inadmissible in court and cannot be used as the standard of care or as a presumption of negligence in a medical liability lawsuit.
Plaintiff attorneys received a substantial pay increase under legislation that Illinois Gov. Patrick Quinn (D) signed in January. H.B. 5151 eliminated the sliding scale fee structure in medical liability cases and replaced it with a flat 33.33 percent fee on the entire award. Formerly, the sliding scale was 33.33 percent of the first $150,000, 25 percent of the next $850,000, and 20 percent of anything more than $1 million.
The Michigan legislature adopted liability reforms before adjourning the lame-duck session in January. S.B. 1115 and S.B. 1118 helped to clarify a number of existing liability statutes, including the definition of noneconomic damages to clearly denote what damages or losses are subject to the cap and when it may be applied to ensure that judges are unable to circumvent the legal restrictions on awards.
The New Jersey Supreme Court issued a ruling in a medical liability case pertaining to expert witness qualifications. Under New Jersey law, the plaintiff’s expert witnesses must be board certified in the same specialty as the defendant. In this case, the court ruled that an internist who specializes in hyperbaric medicine, critical care medicine, and pulmonary diseases is ill-qualified to testify against an emergency physician and a family physician. The court found that plaintiffs cannot establish the standard of care through an expert who practices outside of the defendant physicians’ medical specialties and barred the expert from testifying to the standard of care.
A number of medical liability bills were introduced in New York that would have likely increased liability insurance premiums in the state. The bills and their related provisions were as follows:
- S. 554: remove contingency fee limitations in medical liability claims
- S. 744/A.1056: change the medical liability statute of limitations
- S. 551/A.1001: expand damages in wrongful death actions
- S. 1046/A.2365: prohibit ex parte interviews of plaintiff’s treating physician
- S. 887/A. 1085: change allocation of damages rules in cases involving multiple defendants
None of the bills passed this session, but they are likely to be reintroduced next session. The ACS is keeping close watch and will notify New York Fellows in the event that happens.
On June 4, the Oklahoma Supreme Court ruled that several comprehensive medical liability reforms, such as certificate of merit requirements, caps on noneconomic damages, and joint and several liability, are unconstitutional. The justices found that the tort reform legislation passed in 2009 violated the single subject rule of the state’s constitution. The court did not rule on the merits of the policies in the statute, with the exception of the certificate of merit requirements, which the court ruled unconstitutional because this law is a “special law” applied to professional negligence cases and not all negligence cases, thereby creating undue financial burdens. However, the cap on noneconomic damages remains in place because the legislature enacted it under a separate cap in 2011, and the court only addressed the 2009 law.
Oregon Gov. John Kitzhaber (D) signed S.B. 483, Early Discussion and Resolution legislation, into law on March 18. The new law offers health care providers and patients the opportunity to voluntarily resolve notices of adverse events without litigation. It is anticipated that open discussion of adverse events ultimately will enhance patient safety. Under the legislation, discussions are initiated by filing a notice of an adverse health care incident with the Oregon Patient Safety Commission. A health care provider, health care facility, or patient may file this notice. Other steps in the resolution process include early, confidential discussion of what happened during the delivery of care; any necessary mediation; and an opportunity to make a compensation offer, if warranted. If an offer is made and accepted, the physician or facility extending the offer may require that the patient sign a release of future liability.
S.B. 129, introduced in April and assigned to the Wisconsin Senate Committee on Judiciary and Labor, would enact an “I’m Sorry” statute for medical liability actions. According to the bill, an expression of apology, benevolence, compassion, condolence, fault, liability, remorse, responsibility, or sympathy to a patient or relative/representative would be inadmissible into evidence or subject to discovery in any civil action or administrative hearing regarding the health care provider as evidence of liability. Similar bills were introduced in the Assembly, but no final action was taken, and Wisconsin remains one of the few states without an “I’m Sorry” statute.
The adage “third time’s a charm” rings true for one Texas bill, as it took three legislative sessions to pass the UEVHPA. After clearing the House and the Senate, Gov. Rick Perry (R) signed the law June 14, and it became effective September 1. The purpose of this ACS-endorsed legislation is to improve the ability of out-of-state surgeons and other physicians to provide care in Texas during a declared emergency.
J. Patrick Walker, MD, FACS, a general surgeon from Crockett, TX, was the surgeon champion for this legislation. He closely worked with his local state legislator to get the bill introduced, and visited Austin on a number of occasions to present testimony. This instance is an excellent example of how grassroots advocacy can help legislation get enacted at the state level. When individual surgeons take the time to contact their elected officials to get legislation introduced, commit to presenting testimony in committee hearings, and coordinate requests for information, sound legislation gets enacted.
S.B. 374, legislation to strengthen existing California law relating to assault weapons, passed both legislative chambers and was ultimately vetoed by Gov. Jerry Brown (D). It was part of a package of firearm safety bills; those bills that did achieve enactment called for the following:
- Ban the use of lead ammunition in hunting by no later than 2019
- Prohibit businesses from getting assault weapons permits
- Add criminal liability for firearm storage that endangers a child
- Require all gun purchasers to take a firearm safety class and earn a safety certificate
Current California law already has strict background checks and waiting periods for all gun purchases. Multiple physician organizations in the state supported these bills, with the Northern California Chapter of the ACS taking a position of support for S.B. 374 early on in the legislative process.
At the start of this year, youth concussion education and distracted driving proved to be the two most active injury prevention issues. More than 43 states and the District of Columbia have youth concussion education statutes in place, typically requiring concussion education of youth, coaches, and athletic trainers, and medical clearance before an injured athlete may return to practice or play. During 2013, 18 bills were introduced—some to amend existing statutes, and others to implement youth concussion education requirements. Of those few states without such a statute, Montana and South Carolina enacted one.
Nineteen states saw activity that would restrict distracted driving. Of these bills, 11 related to texting while driving and eight required hands-free use of mobile devices. A Connecticut bill would have required insurance discounts for consumers who download apps on their phone that prevent texting while driving.
Scope of practice
Recent activity in the California Assembly on S.B. 491 brought nurse practitioners one step closer to independent practice. Under the terms of the bill, which did not achieve passage, nurse practitioners would have been able to order durable medical equipment without physician supervision and, in consultation with a physician and surgeon, approve, sign, modify, or add to a plan of treatment or plan for an individual receiving home health services or personal care services. Additionally, nurse practitioners would have been able to furnish or prescribe drugs or devices, establish patient diagnoses, and delegate tasks to medical assistants. However, nurse practitioners would have been required to carry an appropriate level of liability insurance. Although this legislation did not pass, it did receive stronger support than in previous years.
Following a few years of optometrists making intense attempts to be permitted to practice surgery in Florida, ophthalmologists and their surgical and medical colleagues succeeded in achieving the enactment of legislation that would clearly define surgery and clarify what optometrists may do as part of their scope of practice. Optometrists would also be required to report adverse incidents to the Florida Department of Health, and a patient-specific written protocol between an ophthalmologist and an optometrist would be required for the provision of postoperative care. The governor signed the law in April.
The Louisiana legislature considered a bill to significantly increase the scope of practice of optometrists to prescribe controlled substances and perform ophthalmic surgery, as well as be called ophthalmic physicians. The bill passed out of committee, and a major grassroots effort was launched by the Louisiana Chapter of the ACS with assistance from the College, the Louisiana State Medical Society, and the Louisiana Academy of Ophthalmology. Surgeons sent more than 60 letters to Louisiana legislators and the Speaker of the House stating their opposition to this legislation, which helped to ensure the withdrawal of the bill from consideration.
Following months of negotiation between physicians, advanced practice nurses, and physician assistants, the Texas legislature passed legislation creating a team-based, physician-led collaborative model of practice. Under the new law, physicians will enter into prescriptive authority agreements with advanced practice nurses or physician assistants, delegating to them the ability to prescribe under the supervision of the physician. Periodic in-person meetings are required between the physician and the advanced practice nurse/physician assistant.
Florida Gov. Rick Scott (R) approved legislation creating the Cancer Center of Excellence Award to recognize hospitals, treatment centers, and other providers in the state that demonstrate excellence in patient-centered coordinated care for individuals receiving cancer treatment and therapy. To be considered for the award, the hospital, treatment center, or other provider must have ACS Commission on Cancer accreditation, and the state Surgeon General will appoint a team of independent evaluators to determine award eligibility.
A recent hot topic in the state legislatures has to do with follow-up imaging for women who have dense breast tissue. A total of 26 bills were introduced around the country in 2013 mandating that coverage be provided for an additional imaging test, whether it be another mammogram or some other appropriate test. Hawaii, Illinois, Indiana, Maryland, Nevada, Oregon, Tennessee, and Virginia enacted this legislation, with many of the other states likely to see this legislation reconsidered in 2014.
Although keeping up with the many bills introduced at the state level over the course of a year is an important part of advocacy, there is much more to the entire process. It is vital that surgeons and ACS chapters play an active role in advocating for or against legislation that is of concern to them. One excellent way to do this is through a lobby day at the state capital.
As noted in the October issue of the Bulletin of the American College of Surgeons, the College’s Chapter Lobby Day Grant Program continues to be popular with many ACS chapters.* A total of 16 lobby days took place this year, providing opportunities for active grassroots advocacy as well as building relationships with legislators and learning the do’s and don’ts of advocacy.
For the third year in a row, the Connecticut Chapter had an extremely successful lobby day as co-host of the Connecticut State Medical Society’s Doctor’s Day. This program draws numerous state specialty societies to the capital for an opportunity to present a unified voice to legislators. Major issues from the perspective of the chapter included advocating for adoption of a definition of surgery and defeat of a bill that would weaken Connecticut’s certificate of merit statute. The Connecticut Surgical Quality Collaborative also received top billing as part of the briefings held before legislative visits.
One big item on the day of the event was the signing of Connecticut’s new firearms legislation, which was developed in response to the tragedy at Sandy Hook Elementary School.
The North Carolina Chapter met in Raleigh on February 5–6 for their first lobby day. On February 5, lobby day participants and invited representatives attended a cocktail reception, enjoying a casual atmosphere and a preview of what was to come in the legislative appointments the following day. On February 6, surgeons met with the North Carolina Medical Society lobbyist to discuss the key issues to be addressed in their meetings with legislators and reviewed talking points, then met with their respective legislators as well as key committee members.
Surgeons joined with their Tennessee Medical Association (TMA) colleagues for the TMA Physicians Involved at Tennessee’s Capitol Hill lobby day. Issues raised with legislators included the importance of requiring helmets for motorcycle riders, trauma funding, cancer care, rural access to general surgeons, scope of practice, and state Medicaid funding.
The Virginia Chapter participated in its third White Coats on Call Day in conjunction with the Medical Society of Virginia on February 6 in Richmond. This took place on “crossover day,” which is the deadline for bills to be passed from one chamber to the other. Holding a lobby day at this time reduces the number of committee hearings being held, which makes it more likely that surgeons will be able to meet with individual legislators.
Surgeons who participate in these lobby days gain valuable advocacy experience and leave the event with a sense of accomplishment and excitement about participating in the democratic process. They also build and/or enhance relationships with their legislators, making future interactions more productive on issues important to surgeons and to the physician community at large.
For advocacy to be effective at the state level, it is important that Fellows and their chapters actively engage with their state legislators. Many ACS resources are available to assist with these efforts and are available. In addition, the State Affairs staff is available at 202-337-2701 and are always glad to hear from Fellows regarding legislation in their state.
The author acknowledges the assistance that Charlotte Grill, ACS Member Services Administrator for the Young Fellows Association, Chicago, IL, provided in compiling the information in this article when she was in her previous position of State Affairs Associate, Division of Advocacy and Health Policy.
*Grill C, Sutton J. Chapter lobby days forge ahead in state capitals. Bull Am Coll Surg. 2013;98(10):16-18.