Cover: Fight to protect medical liability caps and professional review
Cover: Fight to protect medical liability caps and professional review
Wednesday, March 13, 2024
Colorado physicians are watching with growing apprehension as two recently proposed ballot measures are taking shape in the state.
Initiative #150, backed by the Colorado Trial Lawyers Association and personal injury attorneys, would eliminate non-economic damage caps in catastrophic injury and wrongful death cases. If approved by voters, it will lead to astronomical jury awards that will inflate medical malpractice insurance costs and drive physicians and other health care practitioners from our state.
“With the potential for larger damage awards in malpractice cases, obstetricians and gynecologists may face increased malpractice insurance premiums,” said Kim Warner, MD, an obstetrician-gynecologist an obstetrician-gynecologist and CMS president-elect. “Some obstetricians and gynecologists may choose to adjust their practice patterns or even leave the state in response to increased litigation risks and costs associated with potential malpractice claims.”
“This could result in crucial decreases in access for women in Colorado and force women to travel long distances to seek care, ultimately leading to higher morbidity and mortality rates.”
If passed, Initiative #150 would have a chilling effect on specialty care providers like Dr. Warner, as well as all medical professionals and patients throughout the state.
But we’re not going to let that happen.
As the largest organization representing the interests of physicians in Colorado, the Colorado Medical Society has been a driving force behind a broad health care coalition, Coloradans Protecting Patient Access (CPPA), that has been working for more than a decade to advocate for fair and equitable laws. Now, we’re asking you to help us protect quality care and the commonsense practice of medicine in our state.
Ballot initiatives threaten our carefully created, commonsense system
Along with Initiative #150, trial lawyers filed another ballot measure with the Colorado Legislative Council requesting to be placed on the November ballot. Initiative #149 imperils our current medical peer review process by requiring patients to have access to any medical record, medical information or medical communication by a health care professional or institution if it relates to an “adverse medical incident,” including a near miss.
This would gut protections provided in the nearly 50-year-old Colorado Professional Review Act, destroying the safe space needed to foster an environment where physicians, physician assistants (PAs) and advanced practice registered nurses (APRNs) can critically review the care of their peers and self-report when there is an adverse health care incident or near miss in the interest of improving care for all patients.
Initiatives #149 and #150 would destroy long-term policies key to maintaining quality, affordable and accessible health care.
Medical liability caps were created in 1988 as part of the Colorado Health Care Availability Act (HCAA) to provide stable liability rates. In the last few years, trial lawyers have pushed to significantly raise or even eliminate caps on non-economic damages nationwide, which are defined as subjective, non-monetary losses such as reduced quality of life, pain and emotional trauma. These efforts have included ballot fights and legislative compromises in states like California, Iowa and Nevada. In states without non-economic damage caps, practices have been forced to file for bankruptcy or close altogether because of astronomical verdicts, ultimately limiting access to care for patients.
“Eliminating the caps will make medical liability coverage for physicians skyrocket. This will limit access to patient care,” said Omar Mubarak, MD, MBA, a vascular surgeon and CMS president. “After years of increasing administrative burden, increasing burnout and a global pandemic that became so divisive, I predict we will see many more physicians in the prime of their career retiring early and fewer young professionals choosing medicine.”
This would impact all Coloradans, particularly those in rural areas and high-risk patients requiring specialty care, by making it more difficult to retain and recruit physicians and other health care professionals.
Sweeping changes for all Colorado businesses
In addition to personal injury claims for medical liability, Initiative #150 affects general liability for any business in the state. Hospitals, facilities and clinics that are businesses themselves would feel double the impact, including rising costs of property and casualty insurance, auto insurance and more. While these increased costs fall on businesses, they will likely result in “cost of doing business” expenses being passed down to consumers, impacting the quality and affordability of life for everyone in Colorado.
“Colorado’s legal climate has been deteriorating, making it more and more difficult to do business here. We’ve dropped from ninth to 21st in our national legal climate ranking,” said Loren Furman, president and CEO of the Colorado Chamber. “We are already one of the most expensive places to live and do business – the consequences of encouraging even more costly lawsuits across the state will be felt by everyone.”
Our response: Countermeasures and a balanced legislative solution
A broad-based coalition of small and large businesses, patient advocacy groups and health care organizations, including CPPA, has filed two countermeasures with the Colorado Legislative Council. The issue committee, called Coloradans for Attorney Accountability (CAA), wants its ballot measures to ensure Colorado maintains transparent legal reforms, with a focus on impacted parties’ rights to recover fair compensation for damages.
The first initiative, Initiative #170, caps attorney fees in cases of personal injury and wrongful death at no more than 25 percent of their client’s total damages award. The second initiative, Initiative #171, also known as a “sunshine law,” requires lawyers in personal injury and wrongful death cases to disclose litigation costs to be borne by clients in civil cases proactively and transparently. These measures would ensure attorneys don’t benefit from high fees or a failure to disclose expected costs at the expense of their client’s ability to receive fair compensation.
At the legislative level, since Colorado’s non-economic damages cap (as included in the HCAA) is one of the lowest in the country and has been unchanged for 20 years, we support a reasonable increase to the medical liability cap that provides fair compensation in medical liability cases, while ensuring health care accessibility, affordability and stability.
Senate Bill 24-130, with bipartisan sponsorship including licensed emergency room nurse Sen. Kyle Mullica (D-Thornton), would increase Colorado’s non-economic damages cap in the HCAA from $300,000 to $500,000 over a five-year period. In the past two years, California and Nevada raised non-economic damage caps to avoid ballot initiatives eliminating non-economic damage caps altogether. We strive for a similar outcome. Over 30 health care organizations in the state support this legislation, and that list continues to grow.
A second legislative measure, Senate Bill 24-062, would have prohibited a plaintiff’s attorney from collecting attorney contingency fees based on the portion of the ultimate damages award attributable to 9 percent compounding interest. Sponsored by Sen. Bob Gardner (R-Colorado Springs), this bill failed in committee following trial lawyer testimony – demonstrating the substantial resources of our opponents and the need for those supporting health care access to come together.
How you can help
We must immediately raise critical funds to fuel a robust statewide ballot campaign to defeat both ballot initiatives and to pass those introduced by Coloradans for Attorney Accountability. Please reach out to your colleagues, employers, business associates, friends and family to invest in the fight to maintain high-quality, affordable health care in Colorado.
Donate now:
- Donate online at givebutter.com/QPZnJ3
- Send a check made out to the Colorado Medical Society with Liability Defense Fund written in the memo section, to 7351 E. Lowry Blvd, Suite 110, Denver, CO 80230.
- Call the CMS offices at 720-859-1001 Monday-Friday 8:30 a.m.-5 p.m. to make a secure contribution using your credit card.