In a legislative session that has already proven to be very demanding, I'm in the midst of what I believe may be one of the biggest challenges I've faced as a delegate. As an appointee to the conference committee on medical malpractice legislation, I'm one of 10 delegates and senators charged with the task of reaching a compromise between the House and the Senate. While the prospect of negotiating over such controversial legislation may be daunting, we House conferees are well aware of the will of the House of Delegates and the House leadership, as well as the wishes of the health care community. The need for legislation to address the medical malpractice crisis is pressing, but we plan to act calmly and deliberatively.
The House and Senate malpractice bills share many similarities, but they are both complex, and much of the differences lie in the details. Both versions are sweeping bills crafted not only to curb frivolous lawsuits and overly large jury verdicts, but also to offer financial relief for physicians facing skyrocketing insurance costs.
The major difference between the House and Senate bills surrounds the method by which the Legislature would offer financial relief for doctors. The House legislation contains a three-year, 20 percent tax credit for physician premiums paid over $10,000 a year. The House income tax credit would be phased out in three years, which is the estimated amount of time it would take for any tort reform measures to result in lower insurance costs. The Senate legislation contains a 10 percent provider tax credit on all "tail insurance," which is insurance to cover time periods during which a doctor was covered by a different plan that has since expired, periods for which the doctor is still liable.
When the Legislature held an emergency special session regarding the medical malpractice problem in 2001, we passed legislation which laid the groundwork for the creation of a physicians mutual company. But the Senate's current bill would take more steps to ensure that doctors create a physicians mutual, spelling out more details for its enactment. The Senate would set aside $24 million from the tobacco settlement fund for the plan, and stipulates that doctors play a significant role on the physicians mutual board of directors. The Senate would also enact an assessment on insurance carriers to help repay the funds taken from the tobacco settlement account.
The Senate also changed the House's proposed reporting requirements for physician malpractice. The House would stipulate that five judgments or settlements within five years would require state supervision, while the Senate would add the provision that if three judgements or five settlements are made within a five-year period, the Board of Medicine would investigate.
The Senate would also require that insurance companies that cover physicians must offer coverage to all specialties.
Regarding "tort reform," the effort to curb lawsuits and overly large jury verdicts, both the House and Senate bills have similar provisions. Both bills would tighten the requirements for expert witnesses, but while the House would require that an expert spend 75 percent of his or her time actively practicing or teaching, the Senate lowered that percentage to 60. The Senate also eliminated the House proposal to allow periodic payments of judgments over $100,000. The House bill contains a $250,000 cap on non-economic damages. The Senate version has a general $250,000 cap on non-economic damages, but would raise it to $500,000 in cases involving death, loss of limb or permanent disfigurement, or a vegetative state.
Clearly, there are distinct differences between the House and Senate bills, but I'm hopeful that they're not so vast that we can't reach a compromise. In the meantime, I'll continue to report to you on our progress.
I welcome and appreciate your input on these issues, or any other legislative matter. Please call me at (304)340-3106 or write to Delegate Virginia Mahan, 215-E, Capitol Complex, Charleston, WV 25305.