New Jersey - Volume XII, Number 2 - February, 2003

NJ PHYSICIANS PARTICIPATE IN WORK SLOWDOWN AMID BROAD PUBLIC SUPPORT; TORT REFORM NEGOTIATIONS UNDERWAY

Following a week-long job action, involving thousands of physicians in activities including a march on Trenton, meetings with legislators, rallies in their communities, leafleting at train stations, and picketing key legislator’s offices, the Medical Society of New Jersey and KACS, as its General Counsel, have been engaged in intense negotiations to forge tort reform legislation acceptable to the physician community. A Star-Ledger poll found that 68% of NJ residents supported the state’s physicians actions with 57 % supporting their demand for a $250,000 cap on pain and suffering. 82% blamed “too many lawsuits” as a major reason for high premiums, 73% cited high jury awards as a major reason, and 63% blamed insurance company mismanagement. Only 30% blamed incompetent physicians.

After numerous meetings between MSNJ representatives and key legislators during the week of the job action, a proposed bill was presented by the Commerce and Health Committees. Major elements of the proposed bill still require amendment. The proposal calls for a $300,000 limit on non-economic damages to be paid by a physician’s insurance company, with the next $700,000 to be paid by a State-created fund. However, no limitation would be imposed on non-economic damages. MSNJ recommends that non-economic damages be limited to $250,000, with the next $750,000 to be paid under the fund, with no payments in excess of $1 million for non-economic damages, per incident. In addition, in order to obtain monies from the fund the following criteria would have to be met: 1) a showing that a limit of $250,000 would constitute a manifest injustice; 2) no personal liability to the physician for non-economic damages; 3) no distribution in any year in an amount in excess of that raised by the fund (if fund monies are insufficient to pay all claims, each claimant’s share would be reduced proportionately); 4) total monies raised for the fund would be limited to approximately $20,000,000 per year; and 5) the fund would not apply to settlements.

Other provisions of the proposed bill were also deemed unacceptable, including a 2 year statute of limitations from the “accrual” of the action, allowing an unlimited discovery period and a proposed limitation on suits for birth injuries of 11 years which would apply only to children born after the effective date of the act. MSNJ recommends that birth injuries be limited to 6 years after birth and be applicable to all existing causes of action and that the statute of limitations for all other injuries be limited to 2 years from accrual or 4 years from the date of the injury, whichever is less. The proposed bill requires that expert witnesses be of the same specialty and sub-specialty, but allows a judge to waive this requirement if he finds an expert qualified, an exception that should be severely restricted. The proposed bill provides for a number of findings before an expert is allowed to testify, but did not incorporate the net opinion rule which provides that for an expert to testify that there has been a deviation from an accepted standard of care, there must first be presented tangible evidence that such a standard exists. MSNJ recommends that language requiring tangible evidence of the existence of a standard of care be required both before giving testimony, and at the initiation of the lawsuit. MSNJ also recommends the addition of language that the existence of a writing shall constitute conclusive proof of informed consent as to the matters set forth in the writing. This will avoid the all too common situation of the patient claiming, after the fact, that he or she did not understand the informed consent language, failed to read it, or was told that it wasn’t important or other assurances.

MSNJ President, Dr. Robert Rigolosi, and Steven Kern of KACS, presented MSNJ’s position to a joint meeting of the Commerce and Health Committees on February 10th.

Top of Page