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New Jersey’s contentious battle over medical malpractice ended in a classic political compromise: Everyone got something but the grumbling went on. The law, signed last week and effective in 30 days, is a partial win for plaintiffs lawyers. It does not cap noneconomic damages as doctors and their insurers had wanted. But it puts time limits on certain suits, allows reduction of excessive damage awards, restricts use of expert witnesses and adopts other means to brake rising insurance costs. Though doctors did not get a cap on noneconomic damages, the New Jersey Medical Care Access and Responsibility and Patients First Act, A-50, gives them a bit of a reprieve. Where damages exceed $1 million, half will be paid at once, the rest in the next 60 months “in the form of a structured payment agreement.” Costs and attorney fees, however, will be paid out of the first $1 million. One of the key provisions in the act is an increase in the power of judges to increase damages awards or reduce those found excessive. On a motion for remittitur or additur, the standard of review will be whether the award is “clearly inadequate or excessive in view of the nature of the medical condition or injury that is the cause of action or because of passion or prejudice by the jury.” The provision applies only to cases filed after the act takes effect. Another important change is a reduction of the statute of limitations in birth-injury cases, which produce many of the largest medical malpractice verdicts and settlements. Plaintiffs now can sue as late as two years after the child reaches adulthood, or 20 years after the alleged negligence. The new law chops off seven years. Complaints will have to be filed before the 13th birthday. If the child’s parent or guardian has not sued by the time the child turns 12, the child or an adult designated by the child can petition the court to appoint a guardian ad litem to sue. The bill also provides an out for faultless health care providers who claim they get socked with higher premiums merely because their names were on a laundry list of defendants initially named in a suit. They can escape by filing an “affidavit of noninvolvement” showing they were misidentified or not involved in or responsible for the alleged malpractice. Co-defendants can file motions challenging those assertions. False affidavits are punishable by fee awards and referral to the attorney general and the relevant licensing board for further review. Those who falsely object to an affidavit of noninvolvement face similar sanctions. Insurers are prohibited from increasing premiums based on claims dismissed within 180 days of the last responsive pleading. EXPERT WITNESSES Several provisions are geared to tightening the qualifications and impartiality of expert witnesses. Experts will be able to testify on the proper standard of care only if they share the same specialty and credentials as the defendant health care provider. The same criteria apply to experts who provide affidavits of merit. Expert witnesses in medical malpractice cases can no longer be paid on a contingency basis and are protected from retaliation for their testimony by the threat of civil penalties up to $10,000. On another conflict issue, officers and directors of health care professional groups will no longer be able to do double duty in the offices and boardrooms of malpractice insurers, on pain of a similar $10,000 penalty. The provision is apparently a response to allegations that the interlocking leadership of the Medical Society of New Jersey and medical insurer MIIX caused the society to blame lawyers rather than insurers for rising malpractice premiums. INSURANCE BAIL-OUT A central feature of the new law is an insurance subsidy program. The Medical Malpractice Liability Insurance Premium Assistance Fund will collect $26.1 million per year for the next three years from a $75 surcharge against lawyers, physicians, podiatrists, chiropractors, dentists and optometrists, plus $3 per employee from employers subject to state unemployment compensation law. The fund will devote $17 million to subsidizing insurance for doctors in specialties where average premiums have risen the most. The rest will go to hospitals, student loan reimbursement for obstetricians-gynecologists and other purposes. Other highlights of the bill are: � A requirement that physicians carry at least $1 million per occurrence and $3 million per year in malpractice coverage. � Expansion of “Good Samaritan” immunity to licensed health professionals, emergency medical technicians and paramedics who respond in good faith to a life-threatening emergency when not required by their jobs. � A requirement that any doctor arrested or convicted of homicide, aggravated assault, sexual assault, criminal sexual contact or lewdness, or drug offenses report it within 10 days. � A requirement that malpractice carriers offer the option of a lower premium in exchange for loss of the right to consent to settlement. Carriers must also offer lower premiums for insureds who agree to a deductible ranging from $5,000 to $1 million per claim. � A provision allowing judges to refer medical malpractice cases for complementary dispute resolution within 30 days of the end of discovery. The bill, even by its own terms, does not purport to address every issue or even to shut the door on capping damages. Instead, it establishes a “Medical Care Availability Task Force” to study the pros and cons of limiting noneconomic damages, retaining limited liability for nonprofit hospitals and other issues. The state will also keep closer tabs on medical malpractice insurers with a new requirement that they report all settlements, judgments and arbitration to the Department of Banking and Insurance. GROUSING GOES ON Not surprisingly, the complaining continued by both sides. Raymond Cantor, a spokesman for the Medical Society, calls the legislation “at most, a band aid” that will not achieve the goal of reducing malpractice insurance costs. Doctors still think a cap is necessary and are hoping the task force might go in that direction, he says. Lawyers found reason to attack the bill only two days after it was signed. Edwin McCreedy, president of the New Jersey State Bar Association, June 9 called for an “investigation into the integrity of the information provided to the Legislature by medical malpractice insurance companies” and repeal of the subsidies for doctors until “a genuine need for such a fund can adequately be demonstrated.” His statement came in reaction to insurance data on medical malpractice payments released June 7 by order of a federal court that showed medical malpractice payments fell in the past two years. Cantor says he has not seen the released data but any analysis of its significance must consider the “long-term tail for malpractice insurance” and that current rate increases are the product of payouts stretching back several years.

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