Caps Analysis: Mixed results on malpractice referendums in four states
Compiled for Pennsylvania Trial Lawyers

(11/3/2004) -- There were mixed results yesterday in the four states that had malpractice referendums: Florida, Nevada, Wyoming and Oregon.

  • In the three that pushed for caps, two lost (Wyoming and Oregon), with Nevada voters supporting amending their constitution (Florida legislatively enacted them);
  • In Florida and Nevada, voters backed limiting attorneys’ fees;
  • In Wyoming, an amendment to allow the Legislature to set up a review panel before a malpractice case could be filed won;
  • Nevada rejected both an amendment cleaning up the insurance industry and one penalizing lawyers for filing “frivolous” cases; and
  • In Florida, voters passed requirements for greater disclosure of a physician’s record and a “three-strikes-and-you’re-out” for bad doctors.

But possibly the greatest danger to your clients and your practice was what Senator George Allen said last night when asked what the new Senate would do differently: the second item he cited was enact “liability reform”.

Below are the specifics of the caps/malpractice issues voted on yesterday.

FLORIDA: There were 3 medical malpractice amendments on the ballot.

Amendment 3: Proposes to amend the State Constitution to provide that an injured claimant who enters into a contingency fee agreement with an attorney in a claim for medical liability is entitled to no less than 70% of the first $250,000.00 in all damages received by the claimant, and 90% of damages in excess of $250,000.00, exclusive of reasonable and customary costs and regardless of the number of defendants. This amendment is intended to be self-executing.
PASSED: 4,435,176 to 2,540,733 (63.58% to 36.42%)

Amendment 7: Current Florida law restricts information available to patients related to investigations of adverse medical incidents, such as medical malpractice. This amendment would give patients the right to review, upon request, records of health care facilities' or providers' adverse medical incidents, including those which could cause injury or death. Provides that patients' identities should not be disclosed.
PASSED: 5,546,123 to 1,323,090 (80.74% to 19.26%)

Amendment 8: Current law allows medical doctors who have committed repeated malpractice to be licensed to practice medicine in Florida. This amendment prohibits medical doctors who have been found to have committed three or more incidents of medical malpractice from being licensed to practice medicine in Florida.
PASSED: 4,846,949 to 2,029,190 (70.49% to 29.51%)

NEVADA: There were 3 medical malpractice issues on the ballot.

State Question 3: Shall Title 1 of the Nevada Revised Statutes governing attorneys, and Title 3 of the Nevada Revised Statutes governing actions for medical or dental malpractice and damage awards, be amended to limit attorney's fees and damages which a plaintiff may recover in an action regarding professional negligence?
PASSED: 465,321 to 318,189 (58.71% to 40.15%)

State Question 4: Nullified limits on compensation for victims of medical negligence unless insurance companies lower malpractice premiums as a result of such limitations and mandated the appointment of an Insurance Commissioner for oversight and regulation of the industry.
DEFEATED: 273,051 to 513,252 (33.96% to 63.83%)

State Question 5: Shall the Nevada Constitution be amended to penalize lawyers willfully involved in vexatious and frivolous litigation, and to prohibit certain changes to limits on recovery of monetary damages?
DEFEATED: 292,548 to 494,598 (36.12% to 61.06%)

OREGON: There was 1 medical malpractice amendment on the ballot.

Amendment: The measure would impose a limitation of $500,000 (adjusted annually for inflation) on the amount that can be claimed as noneconomic damages arising from injury to any one patient that may be recoverable from health care providers or entities..
DEFEATED: 750,581 to 752,347 (49.94% to 50.06%)

WYOMING: There were 2 medical malpractice amendments on the ballot.

Amendment C: This amendment would allow the Wyoming legislature to enact laws requiring alternative dispute resolution or medical panel review before a person files a lawsuit against a health care provider for injury or death.
PASSED: 104,556 to 94,592

Amendment D: This amendment would allow the Wyoming legislature to enact laws limiting the amount of damages for noneconomic loss that could be awarded for injury or death caused by a health care provider. “Noneconomic loss” generally includes, but is not limited to, losses such as pain and suffering, inconvenience, mental anguish, loss of capacity for enjoyment of life, loss of consortium, and other losses the claimant is entitled to recover as damages under general law.

This amendment will not in any way affect the recovery of damages for economic loss under Wyoming law. "Economic loss" generally includes, but is not limited to, monetary losses such as past and future medical expenses, loss of past and future earnings, loss of use of property, costs of repair or replacement, the economic value of domestic services, loss of employment or business opportunities.

This amendment will not in any way affect the recovery of any additional damages known under Wyoming law as exemplary or punitive damages, which are damages allowed by law to punish a defendant and to deter persons from engaging in similar conduct in the future.
DEFEATED: 97,461 to 100,614