Voters Back Tort Reform Ballot Initiatives

Eliminates exceptions to the state's cap on non-economic damage awards in medical liability lawsuits.

Limits a physician's financial responsibility to the percentage of liability the jury found.

Establishes a periodic payment plan for damages totaling more than $50,000. (Nevada had a cap of $350,000 on such damages, but the exceptions included in its designfor gross negligence or at the discretion of the judge presiding over the casehad proven too broad for the cap to be effective.)

Limits attorney contingency fees.

The other two measuresQuestions Four and Fivewere rejected, much to the delight of the insurance industry. Question Four would have mandated a 20 percent reduction in rates for all lines of property-casualty insurance except workers' compensation and would also have imposed a prior-approval system for those lines. Question Five would have prohibited the state from passing legislation limiting damage awards or contingency fees.

"We are very pleased that the citizens of Nevada rejected these measures that would have had negative consequences for consumers," said Sam Sorich, Western region vice president for the Property Casualty Insurers Association of America. "It was important that voters understood the fine print contained in these ballot questions. If these questions had been successful, the end result would have increased insurance costs and made it easier for lawyers to file frivolous lawsuits."

The fact that voters saw the "fine print" was especially important, according to Mr. Sorich, noting the trial bar had supported Questions Four and Five as consumer-protection initiatives. "The wording of these ballot questions, couched in consumer-friendly language, was deceptive," he said. "It was heartening that voters were able to see through all the rhetoric and recognize that these amendments were bad public policy."

Another major battleground state was Florida, where voters passed three ballot measures to amend the state constitution.

Supported by doctors, Ballot Measure Threeapproved by 64 percent of those votinglimits attorney contingency fees to 30 percent of the first $250,000 and 10 percent of any damages beyond that. Passage "will help restore balance to Florida's broken medical liability system by ensuring patients receive a greater amount of the money awarded in medical liability cases," said Dr. John Nelson, president of the American Medical Association.

Lawrence Smarr, president of the Physician Insurers Association of Americaa Washington, D.C.-based trade association representing physician-owned mutual medical liability insurerscalled the victory "quite an achievement," one that "simply puts more money into the hands of patients."

Eighty-one percent of Florida voters also approved Ballot Measure Seven, supported by the trial bar, granting patients the right to view any records of a medical procedure they had undergone that had an adverse outcome.

Measure Eight, which passed with 71 percent, was a "three strikes and youre out" rule that would remove the license of any physician with three or more medical malpractice decisions against them.

Although the three ballot measures could have an effect on Florida insurersparticularly Measure Threethe industry was not a driving force behind any of them, according to Julie Pulliam, a representative of the American Insurance Association's Southeastern regional office. "We had a trial bar vs. doctors battle this year, and insurers stayed out of it," she said.

The reason for the lack of involvement on the part of insurance companies, she explained, is because of the industry's preference for making law the old-fashioned waythrough the legislature. Using the initiative process, she said, has become too easy and too common.

"The initiative process in Florida does need to be reined in," she said, noting that this election's measures were part of an "escalating battle" between doctors and lawyers that grew out of last year's legislative session, which resulted in medical liability tort reforms being passed.

"Insurers are very glad we did not get into that battle," she said.

Elsewhere, voters in Wyoming rejected Amendment D, which would have changed the state's constitution to allow lawmakers to cap lawsuit damage awards. A similar measure in OregonMeasure 35was narrowly defeated.

Reproduced from National Underwriter Edition, November 11, 2004. Copyright 2004 by The National Underwriter Company in the serial publication. All rights reserved.Copyright in this article as an independent work may be held by the author.