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New Jersey’s Republican leader is pushing legislation aimed at reducing the number and size of medical malpractice verdicts, although the chances of passage are less than rosy. Sen. Joseph Kyrillos, R-Monmouth, says he introduced the three-bill package in response to physician complaints about increasing insurance premiums and the insurance industry’s charges that medical malpractice verdicts are out of control. The measures cap noneconomic damages, limit the statute of limitations, set deadlines for notice of claims, mandate arbitration before trial and shorten the period for filing an affidavit of merit. “A simple injury case should not devolve into an individual essentially winning the lottery,” says Kyrillos, chairman of the Republican State Committee. ” � [W]e are seeing two factors driving up costs — an increasing frequency of lawsuits and increasingly severe claims.” The legislation is likely to face an uphill battle even to clear the Senate Commerce Committee, where it has been assigned. Sentiment is split along party lines, and the committee is made up of three Republicans and three Democrats. The bills are explicit in their detail of what he has proposed to change. The major bill, which has not yet been assigned a number, addresses the cap on damage awards, the change in affidavit of merit requirements, the filing of a notice of claim and the call for mandatory arbitration. Noneconomic damages would be limited to $250,000. The cap would be raised to $500,000 if the plaintiff is rendered hemiplegic, paraplegic or quadriplegic; has permanently impaired cognitive ability leaving him or her incapable of living independently, or suffers from a permanent loss or damage to a reproductive organ that leaves him or her unable to procreate. Juries hearing medical malpractice cases would be required to itemize damages into economic and noneconomic categories so trial judges can set aside noneconomic damages in excess of the applicable cap. Before trial, all medical malpractice actions would be subject to mandatory arbitration before a panel of five arbitrators — two attorneys, two health-care professionals licensed by the same board as the defendant and an active or retired Superior Court judge. Litigants would not be required to attend the arbitration hearings, but if they do, the Rules of Evidence will not apply. Each side will be limited to a 15-minute oral presentation. The panel would be required to issue an evaluation of the claim within 14 days. Only if one or more of the parties disagrees with the evaluation could a claim proceed to trial. The bill also would change the deadline for filing an affidavit of merit, as is required under N.J.S.A. 2A:53A-26, et seq. Under the bill, plaintiffs would have to file an affidavit of merit at the same time a complaint is filed. Defendants would be required to file an answer to the claim within 21 days and within 90 days must file an “affidavit of meritorious defense” prepared by a defense expert in about the same field as the defendant. In addition, the bill would require a person who plans to file a malpractice action to give any possible defendant written notice 180 days before the suit is filed. The notice would have to contain a factual basis for the claim and describe how any defendant deviated from the acceptable standard of care. Within 60 days of the filing of the notice, the plaintiff and the defendants must open their records pertaining to the claim. Lastly, within 120 days of the filing of the notice, the health-care providers must respond to the notice by outlining a defense against the proposed claim. A second bill, S-1668, introduced by Kyrillos in June, would change the statutes of limitations for filing a malpractice claim. Under current law, the statute of limitations is two years after an adult plaintiff knew or reasonably should have known of an injury. Kyrillos is proposing in this bill that the statute of limitations be reduced to one year, and that no action could be filed after three years of a plaintiff becoming aware of an injury. If the prospective plaintiff was less than 2 years old when the injury occurred, a claim would have to be filed within seven years after the plaintiff or his or her parent or guardian became aware of the injury. The third bill, S-1667, would prohibit insurers from increasing premiums for a health-care provider who is hit with a claim, unless that claim results in a settlement, verdict or arbitration award against the defendant. OPPOSITION CERTAIN The bills have not been scheduled for a hearing, but opposition on the Commerce Committee is certain to come from the Democratic co-chair, Sen. Byron Baer, D-Bergen, and the other two Democratic members, Sen. Garry Furnari of Essex County and Raymond Lesniak of Union County. The Republican co-chair, Sen. Gerald Cardinale, R-Bergen, is a likely supporter, given that he was the prime sponsor of the tort-reform package enacted by the GOP-controlled Legislature in 1994. Complicating the scenario is that Sen. Joseph Vitale, D-Middlesex, is writing his own measures addressing the problem of increasing medical malpractice insurance premiums. He will not, though, introduce the package until he has had the chance to study a state-mandated five-year claims review that is now being conducted by insurance carriers in the state that provide medical-malpractice coverage. At present, says Vitale, it is too early to give serious consideration to any legislation. “Without that information [from the claims review], we don’t know what problems to solve,” he says. Vitale adds that he and his Democratic colleagues will likely be adamant in opposing any caps on damage awards. If Kyrillos’ legislation does make it out of the Senate, it would likely face an even tougher battle in the Assembly, where Democrats outnumber Republicans 44 to 36. Gov. James McGreevey has not seen the legislation, but an aide says he is unlikely to support a tort-reform package that caps damage awards and places further strictures on plaintiffs’ chances of getting their case to a courtroom. Bruce Stern, the president of the Association of Trial Lawyers of New Jersey, says his organization will lobby against the bills. “This is the standard pro-insurance, pro-business legislation,” says Stern, a partner at Lawrenceville’s Stark & Stark. “These bills do not address the problem. The insurance companies made bad business decisions and lost a lot of money in the market. �The problem is not with the legal system.”

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