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GOVERNMENT WATCH

TORT REFORM PASSES IN FOUR ADDITIONAL STATES

Missouri, South Carolina, Montana, and Virginia are the latest states to jump on the tort reform bandwagon, passing legislation that greatly regulates medical liability cases.

Missouri and South Carolina have each passed bills that include a $350,000 cap on non-economic damages relating to medical malpractice cases. Montana and Virginia implemented similar caps a few years ago, but recently passed legislation that further protects physicians from medical liability, as reported in American Medical News.

Missouri Gov. Matt Blunt signed the $350,000 cap into law in late March. The bill also limits plaintiffs to one award per defendant, restricts court venues, allows doctors to make expressions of sympathy without it being used against them in court, and requires courts to dismiss cases that do not include a valid affidavit. Missouri is one of 20 states that the American Medical Association has declared to be in crisis because of rising liability costs that were forcing many neurosurgeons to either leave the state or retire early.

In South Carolina, Gov. Mark Sanford signed an identical cap into law on April 4. The new law also requires plaintiffs to provide notice of an intent to file a lawsuit with an affidavit of merit and requires that both parties undergo mediation before going to court. In addition, it exempts physicians who provide care in emergencies from claims unless the plaintiff can prove gross negligence.

William L. Brannon, Jr., MD, Clinical Professor of Neurology at the University of South Carolina School of Medicine, said in an e-mail to Neurology Today that he welcomes the reforms in his state. “I would like to think that physicians could feel more comfortable practicing with less pressure to meet the demands of rising liability costs,” he said. Although he is cautiously optimistic, Dr. Brannon said, among other changes he anticipates, is the emergence of more insurance companies in the state that will create a more price competitive atmosphere, and more neurologists and neurosurgeons establishing practices in the area.

Montana implemented a $250,000 cap on non-economic damages in 1995, but recently passed four additional laws concerning liability cases. One law protects physicians from liability for medical mistakes made by someone not under their supervision. Another protects hospitals from liability if a physician makes a medical error.

Likewise, Virginia has previously set a cap for awards at $1.75 million. New legislation allows physicians to testify about their patients in court and calls for an investigation by the board of medicine of any doctor who has three paid claims in three years.

Montana and Virginia also passed expert witness requirements that restrict expressions of sympathy from doctors from being used in court.

FORMER FDA COMMISSIONER SUPPORTS DRUG REIMPORTATION

Testifying before a Senate committee that drug importation is inevitable, former Food and Drug Administration (FDA) Chief David Kessler, MD, urged the federal government to adopt a proposal that would allow foreign drugs to be sold in the US.

“The choice before you is not the choice of imports or no imports,” he is quoted in the Washington Post as saying, “We already have a system of importation of drugs that jeopardizes public health.”

Dr. Kessler, who is now Vice Chancellor of Medical Affairs and Dean of the School of Medicine at the University of California-San Francisco, supports the Dorgan-Snowe bill, which would allow individual consumers to order brand-name drugs on an FDA-approved list directly from Canada. It would also allow US pharmacists to import medications from Canada, and most countries in the European Union, Switzerland, Australia, New Zealand, and Japan.

Senators Byron L. Dorgan (Dem.) and Olympia J. Snowe (Rep.) introduced the legislation, which would require the FDA to thoroughly inspect the drugs and sets up a system to finance the process.

Dr. Kessler, speaking to the Senate Health, Education, Labor and Pensions Committee, said these requirements would protect consumers from substandard and counterfeit drugs.

Dr. Kessler is the first person connected with the FDA to publicly state that the safety of imported drugs can be assured, according to AAN Federal Affairs Manager Mike Amery. The FDA has not yet voiced support for Dr. Kessler's statement. The pharmaceutical industry is also strongly opposed to any plans for drug importation.

“Members of Congress are genuinely undecided as information on both sides of the safety issue appears to be credible,” Mr. Amery said in an e-mail to Neurology Today. “This is an issue where the President's position will be essential.”

In fact, Mr. Amery said that a more likely scenario would be a bill negotiated by President Bush and passed with bipartisan support. However, the Administration, he said, has indicated that the President will not approve a bill until the FDA assures its safety.

The Dorgan-Snowe bill needs to receive 60 votes to pass through the Senate.

BUDGET WITH CUTS TO MEDICAID PROBLEMATIC FOR NEUROLOGISTS

Congress passed a $2.6 trillion budget on May 2 that is estimated to cut Medicaid by $10 billion over four years beginning in 2007. The Bush administration, at the urging of lawmakers, agreed to approve the formation of a bipartisan commission that will study the future of the program and recommend how the savings should be implemented, Reuters reported.

The vote, which ran mostly along party lines, was 214 to 211 in the House of Representatives and 52 to 47 in the Senate, as reported by the Associated Press. Although the budget resolution is nonbinding, it does set important guidelines for how lawmakers make tax and spending decisions for the 2006 fiscal year.

Lawmakers have been battling over the budget for weeks, with the proposed cuts to Medicaid at the forefront of the debate. President Bush had proposed $8.5 billion in Medicaid savings over five years, while the House had originally proposed cutting $20 billion from the program. The Senate, on the other hand, voted to remove from its budget a plan for $14 billion in reductions to future Medicaid spending.

Rod Larson, Director of the AAN Center for Health Policy, said the cuts will probably force neurologists to accept fewer Medicaid patients.

Mr. Larson said the AAN surveyed members in February and March of this year about reimbursement issues related to Medicaid. Fifty-eight percent of respondents indicated that since 2000, their reimbursement has decreased. In addition, 35 percent said that decreasing reimbursements forced them to reduce the number of Medicaid patients that they see and 15 percent said they were considering doing the same.

“Right now, even without any Medicaid cuts, the amount of money the government pays physicians is low and any additional cuts are going to be a real burden to both patients and their physicians,” he said.

Mr. Larson said the AAN supports the formation of a commission to evaluate the reductions. “We want to compel lawmakers to study the impact of the proposed funding cuts,” he said. “If Medicaid patients are having difficulty finding healthcare providers who will be willing to see them because of a lack of reimbursement, this is a large policy issue that Congress really needs to deal with.”

Health and Human Services Secretary Michael Levitt is responsible for appointing the commission, while some lawmakers urged him to turn the task over to the nonpartisan Institute of Medicine, Reuters reported.

ON MEDICINAL MARIJUANA, ACLU FILES SUIT AGAINST DEA

The debate about the potential use of cannabis-based drugs for medicinal purposes is alive and well in the US. In April, the American Civil Liberties Union (ACLU) announced that it filed a case against what it claims is the Drug Enforcement Administration's (DEA) policy of obstructing research involving medicinal marijuana. (See page 25 for a related story about approval of medicinal marijuana in Canada for patients with multiple sclerosis.)

The ACLU filed the case on behalf of Lyle E. Craker, PhD, Professor of Plant and Soil Sciences at the University of Massachusetts at Amherst, who claims that the DEA has interfered with his attempt to establish a facility to grow marijuana for federally-approved research. Dr. Craker has backing from the non-profit Multidisciplinary Association for Psychedelic Studies, which wants to fund his project.

The federal government, through the National Institute on Drug Abuse (NIDA), is the only entity that may supply marijuana for research purposes, said Alan Hopper, a staff attorney with the ACLU's Drug Law Reform Project. Scientists who want to study the medical benefits of marijuana, either cannot secure marijuana for their research or receive from NIDA marijuana that is not of sufficient quality or potency, he said. In contrast, researchers performing studies involving other illegal drugs obtain their supplies though companies that are contracted by the government and are given licenses to distribute the materials.

Dr. Craker said in a phone interview with Neurology Today that he is interested in growing the plant material for use in clinical trials because of the complaints he has heard from researchers about difficulty in obtaining a stable and good quality supply. Because of limited access, he said, not enough studies have been conducted on the medicinal effects of the plant and many of the studies that have been completed failed because they were done using low quality marijuana.