Vetoes and voters stem the tort 'reform' tide.

About hall the states laced medical malpractice or omnibus tort "reform" battles in their 2003-2004 legislative sessions. Several were able to fend off proposals that would have made it more difficult for victims to obtain compensation for their injuries.

Three state governors vetoed bills that would have severely restricted patients' rights:

* Missouri Gov. Bob Holden (D) vetoed an egregious bill that would have reduced to $400,000 from $565,000 the state cap on noneconomic damages in medical malpractice suits. The legislation also would have implemented a $200,000 noneconomic damages cap in suits that involve emergency department physicians.

* Iowa Gov. Tom Vilsack (D) vetoed a proposed measure that would have capped noneconomic damages in medical liability cases at $250,000.

* Ironically, Connecticut Gov. John Rowland (R) vetoed an omnibus medical malpractice bill because it failed to include caps on noneconomic damages.

Statehouse action

Several other state legislatures rejected anticonsumer proposals in the last session: Alaska, Georgia, Illinois, Kentucky, Maryland, Minnesota, North Carolina, Pennsylvania, South Carolina, Virginia, and Washington.

New Jersey passed restrictive measures, but the law does not include new caps.

Oklahoma Gov. Brad Henry (D) signed a law capping noneconomic damages in medical malpractice actions at $300,000 under certain circumstances. However, a higher award can be granted if at least nine members of the jury agree that the plaintiff showed clear and convincing evidence that the defendant committed negligence or its conduct was willful or wanton.

Ballot initiatives

Oregon and Wyoming thwarted efforts to use the initiative process to restrict patient rights.

Voters rejected Oregon Ballot Measure 35, which would have limited noneconomic damages to $500,000 for injuries caused by health care providers' negligent conduct.

In Wyoming, one of two proposed constitutional amendments failed this year: Although Amendment C passed, allowing the legislature to enact laws requiring alternative dispute resolution or a medical review panel before an injured patient can file a medical malpractice case, Amendment D failed. This measure would have changed the state constitution to permit caps on medical malpractice damages awards.

While Florida voters approved an amendment limiting attorney fees, they also passed two health care-related amendments that were backed by consumer groups:

* Amendment 7 requires that when a patient is injured or dies due to a medical error, the patient or his or her family be given access to all medical records. It also requires public access to information about adverse medical incidents caused by a health care facility or a specific health care provider.

* Amendment 8, also known as the "Three Strikes You Lose Your License" initiative, prohibits doctors who have three or more verdicts for medical malpractice from being licensed to practice medicine in Florida.

Hard road ahead in 2005

Despite these victories for consumers, state tort "reformers" will continue to press their medical malpractice agenda hard this year.

The Arizona Medical Association may try to pass a cap legislatively; if that tails, the association may try to get language qualified for the ballot in 2005.

Voters in Washington state will probably face an initiative after lawmakers failed to pass caps on noneconomic damages. The 2005 initiative proposes to limit the combined liability for noneconomic damages for all defendant health care professionals in a case to $350,000; the combined liability, for all hospitals and other health care facilities would be limited to $700,000, with no one facility liable for more than $350,000.

The initiative would also limit attorney fees, require patients to enter mediation before filing a lawsuit, and require that lawsuits be filed within three years of the alleged malpractice.