Welcome to the May 2005 edition of ArMA's Liability Review. Through this publication, we keep you updated on the growing medical liability crisis and reform activities.

In this edition, you will find an update on the current legislative session and two new laws that will provide some relief for physicians and their patients. We also have a Q & A with the Arizona Department of Insurance on the liability crisis. And, we've included an article on the new "I'm Sorry" law so you'll know how to utilize this new freedom in your patient communications.

We hope you find this publication helpful and informative. If you have any questions, suggestions or comments, please email asmiley@azmedassn.org.

Also, check out the new web site, dedicated solely to medical liability issues, at www.WillCareBeThere.org.

Governor signs two key pieces of legislation

Governor Napolitano signed into law SB1036, Medical Malpractice Procedural Reforms, and SB1251, Elder Provider Liability Reform. Both will go into effect 90 days following the conclusion of this legislative session. Here are the details of the new laws.

SB1036

Expert Testimony

Requires medical expert witnesses in medical malpractice cases to meet the following criteria:

• Be a licensed health care professional.
• Specialize in the same specialty as the physician who is being sued.
• Be board certified, if the physician being sued is board certified.
• Have devoted a majority of their time, during the year preceding the occurrence giving rise to the lawsuit, either engaged in active clinical practice or instruction of students in an accredited school, residency or clinical research program in the same health profession or specialty as the opposing party's expert witness.
• Applies the expert witness requirements in cases where a health care institution is the defendant.
• Prescribes that expert witness requirements do not limit the power of the court to disqualify an expert witness based on other qualifications already stipulated in law.
• Prohibits an expert witness from testifying, if the fee charged by the witness is contingent on the outcome of the case.

Physician Apology

Stipulates that in medical malpractice cases, or in any arbitration proceeding related to the case, any statements, affirmations, gestures or conduct expressing apology, responsibility, liability, sympathy, commiseration, condolence, compassion or a general sense of benevolence made by a health care provider or their employee to the patient, their relative or a health care decision maker relating to the medical care provided is inadmissible in court as evidence of an admission of guilt.

SB1251

Punitive Damages

Requires the court to use common law principles when awarding punitive damages in elder abuse actions.

Attorney Fees

Prohibits attorney fees awarded in elder abuse cases from exceeding two times the total amount of compensatory damages that are awarded in the action.

Allows the court to award additional attorney fees, if the court has reviewed and approved a request on behalf of the plaintiff.

Reporting Requirement

Requires the Arizona Department of Health Services (ADHS) to be notified when an elder abuse case brought against a nursing care institution or nursing care administrator is settled or a judgment is ordered.

Stipulates that the following information must be provided to ADHS:

• Name and address of each defendant.
• Name, birth date and address of each plaintiff.
• Date and location of the occurrence created in the claim.
• Statement specifying the nature of the occurrence resulting in the action.
• Copies of all expert witness depositions, transcripts of expert witness testimony and written evaluation of the case by the expert witness.

Authorizes ADHS to initiate an investigation to determine if the licensee is in violation of the licensing statutes or rules.

Makes technical and conforming changes.

Arizona Department of Insurance talks about medical liability insurance

Q: What is the overall view of the DOI regarding medical liability insurers?

A: Generally, Arizona is in better shape than is the rest of the nation because Arizona has the Mutual Insurance Company of Arizona (MICA), the one medical malpractice liability ("MM")insurer that: (1) is domesticated in and has its entire administrative operation in this state; (2) is committed to doing business in this state; (3) writes almost all of its business in this state; (4) is a monoline insurer (i.e., it only writes medical malpractice liability insurance); (5) is actively working with doctors and other interested parties in Arizona to find solutions that will mitigate or solve the problem; and (6) is financially solvent and voluntarily takes on the risks of many physicians in Arizona who would not otherwise have MM insurance.

To read more Q & A with the Arizona Department of Insurance, click here.

New law means never having to [not] say you're sorry

By Paul Giancola and Sarah Perry

In a recent installment of the Chicago Tribune advice column "Ask Amy," a devastated advice-seeker wrote to complain that, following the deaths of two ill relatives, neither of their respective primary care physicians called the family to offer condolences about the deaths?I can't understand why some sort of acknowledgement from the [doctor] is too much to expect...I think it is the responsibility of the [doctor] to offer some sort of condolence to the family when it is in the midst of the shock of the loss of a loved one."

To read more of this article on the "I'm Sorry" law, click here.