Healthcare Malpractice Claims:
2016 Update
Table of Contents
Introduction
2
The Graying of American and the Impact of Elder Care
3
Protecting the Elderly
7
Traditional Tort Claims
7
Statutory Damage Claims
7
Conclusion
8
Emerging Risks
8
Cyber Attacks
8
Electronic Medical Records
11
An Update on Damage Mitigation Measures
13
Damages Caps
13
State Compensation Funds
14
Challenging Economic Damages via the Affordable Care Act
15
Apologies, Transparency and Communication
18
Negotiation Techniques
20
Conclusion
21
Citations
22
Appendix
i - xxxvii
Introduction
We’re pleased to offer our second annual treatise on Healthcare Malpractice Claims in the United
States. While it is always a challenge to select relevant areas for discussion, we believe we have
selected topics of particular interest to the Healthcare community.
At American International Group (AIG), we greatly value our relationship with our valued clients.
Now more than ever, our partnership with our clients provides the basis for open exchanges of
ideas and information; a continued commitment to patient and resident safety; and a continued
commitment to justly resolve claims.
We hope you find some of the topics in this edition insightful, and look forward to the opportunity to
work with you.
No person is an island. I’d like to take this opportunity to thank the following contributors, without
whom this treatise would never have been possible: Amanda Stobaugh, Esq., AIG Healthcare
Malpractice Claims (Dallas, TX.); Timothy Dingilian, Esq., Jackson & Campbell (Wash. D.C.); Jeff
Carlisle, Esq., Lynberg & Watkins (Los Angeles, Ca.); Richard Montes, Esq., Mauro, Lilling, Naparty
(Woodbury, N.Y.); and Jonathan Rubin, Esq., Kaufman, Borgeest & Ryan (New York, N.Y.)
Thank you,
Marco L. Spadacenta1
Senior Vice President, Healthcare Malpractice Claims
AIG Claims, Inc./Property Casualty
101 Hudson Street, 28th Floor
Jersey City, N.J. 07302
Tel: 201-631-7075
Cell: 917-566-9752
[email protected]
www.AIG.com
The Graying of America
and the Impact on Elder Care
In 1964, Jack Weinberg coined the phrase “Don’t trust anyone over 30.”2 Well, Jack would have a tough time
finding anyone to trust in the 21st Century. Over the next 35 years, largely driven by the aging “baby boomer”
generation (born 1945-1964), the number of individuals in the United States aged 65 and older is expected to
increase from 46 million to 88.5 million persons.3That means by 2050, 20% of America’s population, which is
expected to grow to 439 million, will be 65 or older.4
OlderPopulationGrowth,1960-2050
At least 70 percent of baby boomers are expected to require some form of elder care services during their
lifetime.5 These Elder care providers typically fall into three distinct categories: (1) At Home care, which refers
to individuals who live in their own home, and receive care from family, friends, volunteers, or hired
professionals.6; (2) Residential care (assisted living), which refers to individuals who reside in facilities that
offer basic adult services such as meals, housekeeping, medication assistance, transportation, entertainment,
and round-the-clock oversight.7; and (3) Nursing home care which refers to facilities that provide live-in care to
persons with severe medical conditions, advanced age, and disabilities.8
Why will such a large percentage of baby boomers need services? Compared with previous generations,
baby boomers are more likely to be divorced9; have fewer children10; and have daughters in the workforce,
rather than staying at home11 - all factors that make family care less likely.
The current elder care system is not presently equipped to handle these projected increases in volume.
Expansion will be paramount. But with expansion come challenges such as new construction of state of the
art facilities, as well the; hiring and training of medical staff and support staff.
The majority of nursing homes in the U.S. were constructed in the 1960s, and, according to some, do not
provide the environment or atmosphere currently sought by potential residents.12 Private financing of new
nursing home construction has become more difficult to obtain than it had been in prior decades.13 Between
2007 and 2011, the number of under-construction nursing home units declined by one-third.14
The industry also faces stiff challenges with respect to staffing. A 2011 report by the University of California –
San Francisco concluded that poor quality of care is endemic in many nursing homes.15 Part of the reason for
the lack of appropriate care is that, relatively speaking, there are not enough adults to care for the elderly.
AARP estimates that there are currently approximately 7 people aged 45-64 to care for each person aged 80
or older.16 By 2030, that ratio is expected to decline to 4:1, and by 2050 to fewer than 3:1.17 It has been
suggested that in order to attract more people to the caregiver profession, there needs to be better
supervision and training; more opportunities for advancement; and higher wages.18 Perhaps more importantly,
training and supervision are key to improving care and promoting patient safety.19 The frail elderly in particular
are vulnerable to falls, delirium, infections, adverse drug reactions, and pressure ulcer development.20
A review of Elder Care claims resolved by AIG between January 2012 and June 2016 shows that the greatest
number of claims emanate from some form of patient neglect- failure to monitor the patient.
ClaimType
4.20%
10.80%
FailuretoMonitorPatient
9.40%
Physical/SexualAbuse
TreatmentRelated
5.60%
MedicationRelated
70%
Other
While the average payout for Failure to Monitor claims ranks lowest in both indemnity and legal paid as
compared to the other three most frequent elder care claim categories, the cumulative figures far out strip the
other three combined. (See figure below)
Average
Indemnity Paid
(in thousands)
$155.8
Claim Type
Failure to Monitor
Average Legal
Expense Paid
(in thousands)
$41.5
Total Indemnity
Paid
(in millions)
Total Legal
Paid (in
millions)
$64.2
$15.7
Treatment Related
$168.4
$63.4
$8.3
$2.9
Medication Related
$184.9
$77.5
$4.8
$1.3
Physical/ Sexual Abuse
$266.6
$93.7
$9.3
$3.1
From a risk management perspective, improving supervision, training, and the competency of staff to promote
patient safety, can only lead to decreased frequency of claims, and a corresponding decrease in losses.
TheCostofElderCare
$80B
$70B
$60B
$50B
31
$40B
40
Community-BasedCare
3
$30B
$20B
$10B
InstitutionalCare
37
36
20
$0B
Medicaid Medicare
Outof
Pocket
2
10
1
11
Private
Insurance
Other
The economic value of informal care is substantially higher than total payments for elder care, which reached
about $192 billion in 2011.21 The largest payers for elder care, accounting for about two-thirds of total
spending, are Medicaid and Medicare (see figure above).22 Out-of-pocket spending is the biggest source of
private spending for elder care, and is particularly large for institutional care.23 Private insurance pays for only
a small share of total spending on elder care, although the number of people with private long-term care (LTC)
insurance is growing slowly.24 Other sources of payment include various federal and state programs for
elderly people and private charitable donations.25
Elder care expenditures now account for an estimated 1.3 percent of gross domestic product (GDP).26
Projections of future elder care expenditures are subject to considerable uncertainty.27 Difficulties in making
judgments regarding future care innovations; changes in the utilization of services; and future rates of growth
labor, among other factors make future cost projections tenuous at best.28
FutureSpendingforElderCare
3.50
3.00
2.50
2.00
GDP
1.50
1.00
0.50
0.00
2010
2020
2030
2040
2050
The Affordable Care Act of 2010 (“ACA”) attempted to address the financial challenges associated with elder
care by creating the Community Living Assistance Services and Supports (CLASS) Act, a national, voluntary
public insurance program aimed at long term services coverage, and financed by individual premium
contributions.29 The program was designed to provide working adults the opportunity to offset costs of future
long-term services and supports needs.30 However, Congress formally repealed CLASS in January 2013,
when it was determined that it would not be financially self-sustaining.31
Congress also established a 15-member Commission to provide recommendations to lawmakers regarding
the future of elder care. The Commission’s September 2013 Final Report32 determined that service delivery
was impeded by the difficulties faced by those in need when attempting to access and navigate services
which, according to the Commission was due to the fragmentation and lack of coordination of the elder care
delivery system.33 The Commission’s vision to improve service delivery focused on establishing a more
responsive, integrated, person-centered, and fiscally sustainable delivery system that ensures people access
to quality services in their choice of setting.34 The Commission recommended that the delivery system be
organized to provide: easy-to-access information, as well as provide access assistance to persons with
cognitive and functional limitations; choice of settings and providers; integration with medical and healthrelated care; and affordable, efficient, and coordinated health care.35 In order to accomplish this, the
Commission urged Congress to incentivize the states to offer more viable alternatives in the elder care
setting, and enable and encourage individuals to get care while still living in their homes. The Commission
also noted that Medicaid waiver complexity should be reduced by streamlining the home and communitybased service provisions of the Medicaid statute36 and to establish a single point of contact for each individual
utilizing services.37
The Commission also reviewed the workforce issue and recommended establishing a system which supports
family caregivers, and attracts and retains a competent, adequately-sized workforce capable of providing high
quality services.38 The Commission identified a correlation between high rates of injury among the elderly and
an under-educated workforce, which has a high rate of turnover related to low wages, few benefits, and little
opportunity for advancement.39
While acknowledging that Americans are not adequately prepared for the magnitude of elder care costs the
Commission could not agree on an approach to financing, prompting five of the commissioners to release an
alternative report, which recommended establishing a public social insurance program; reducing barriers in
Medicare for outpatient therapies and home health care; and supporting expanded Medicaid benefits for
home- and community-based services.40
While the Commission recommended that future work be carried out through a national advisory
committee, no such committee has been convened to date, although numerous public and private
stakeholders remain interested in advancing the national elder care agenda.41 For example, in February 2016,
the Bipartisan Policy Center released Initial Recommendations to Improve the Financing of Long-Term Care.
Recommendations included extending existing resources; increasing the availability and affordability of private
insurance; and expanding options at home and in the community for older Americans and individuals with
disabilities under Medicaid.
In addition, the ACA makes $4.3 billion available in grants for states to expand home- and community-based
services for Medicaid enrollees.42 Included in these funds are state grants for a “Money Follows the Person”
program which provides funds to encourage people living in nursing homes or other institutions to move back
into their home, and seek the services and support they need in their community.43 Benefits to this approach
include the dignity of living in your own home in your own community, as well as potentially reduced costs to
the individual, while improving their quality of life.44
Protecting the Elderly
I.
Traditional Tort Claims
Historically, claims asserted against elder care facilities were premised upon traditional common law tort
causes of action, including: general negligence; medical malpractice; battery; sexual abuse;, lack of informed
consent; and neglect- failure to monitor the patient. In recent years, the list has expanded to include alleged
negligent hiring, supervision, and retention of healthcare employees. Under traditional tort liability, claimants
were permitted to recover compensatory damages, but were not entitled to punitive damages.
In order to protect this vulnerable portion of the population, and in response to reports of widespread neglect
and abuse in elder care facilities, the federal government and a number of states enacted legislation aimed
specifically at protecting elder care residents.
II. Statutory Damage Claims
In 1987, Congress passed the “Nursing Home Reform Act,”45 aimed at promoting and enhancing the quality of
life of each nursing home resident. The Act requires elder care facilities participating in the Medicare and
Medicaid programs to “provide services and activities to attain or maintain the highest practicable physical,
mental, and psychosocial well-being of each resident in accordance with a written plan of care that … is
initially prepared with participation, to the extent practicable, of the resident, the resident’s facility, or legal
representative.”46 Additionally, to participate in Medicare and Medicaid, the Act required facilities to: (1) have
sufficient nursing staff;47 (2) prevent the deterioration of a resident’s ability to bathe, dress, groom, transfer and
ambulate, eat and communicate;48 (3) ensure that residents do not develop pressure sores and, if they do,
provide the necessary treatment and services to promote hearing, prevent infection, and prevent new sores
from developing;49 (4) ensure the resident has the right to choose activities, schedules, and health care;50 and
(5) maintain accurate, complete, and easily accessible clinical records on each resident.51 In order to ensure
that each resident receives a standard of care that is free from abuse, isolation, and improper medical
treatment, the Act also included a basic set of rights, commonly referred to as the “Nursing Home Bill of
Rights,” aimed at protecting each resident’s privacy, individuality, dignity, and medical needs. Violations could
result in the imposition of remedies such as monitoring, temporary management, Medicare or Medicaid
payment denial, civil monetary penalties, and termination of the facility/resident agreement.
In the ensuing years, many states enacted similar statutes and regulations aimed at protecting residents of
elder care facilities. (See Appendix, Section I for highlights of all of the states’ elder care protection statutes.)
These statutes, which in many instances provide for additional recoveries in civil actions such as punitive
damages and attorney fees, add to the challenge of mitigating elder care exposure in these venues.
III. Conclusion
The projections discussed herein leave little doubt that elder care needs will significantly increase in
coming decades, as will the need for more facilities and more care givers. With the increased demand for
services, comes the likely increased risk of exposure. Risk management endeavors and risk mitigation
strategies, as well as continued support of Tort Reform are paramount in protecting the viability of this
necessary field of service.
Emerging Risks
I.
Cyber Attacks
A February 2015 study found that health care organizations in the United States faced an average of
approximately one cyber attack per month in 2014, half of which involved the loss or exposure of patient
information.52 Indeed, 2015 was dubbed the “year of the health care hack” in media headlines.53 Attacks
on Anthem, Premera Blue Cross, Excellus BlueCross BlueShield and UCLA Health Systems led the way,
collectively affecting more than 100 million Americans, and accounting for four out of the five largest
breaches ever reported to the U.S. Department of Health and Human Services Office of Civil Rights under
the Health Insurance Portability and Accountability Act (“HIPPA”) reporting framework.54 Despite media
and industry attention to these breaches, and despite healthcare providers spending an estimated $1
billion on cybersecurity measures in 2016,55 many believe the industry remains ill-prepared for the risks of
Cyber Attacks.
Threats
By all accounts, the cyber risks facing the health care industry continue to rise, and, according to some
experts, makes the health care industry one of the sectors most targeted by hackers in the United States.56
There are several reasons for this. Firstly, the information collected by health care providers on individuals
has become more valuable on the black market than the retail and credit card information which dominated
cyber breaches in years past. By some estimates, the information contained in health care records is worth
between 10 and 50 times more than retail or credit card information.57 Credit card numbers and bank
account information can be canceled or changed after they have been compromised, but health information
generally cannot.58 While the health care industry moves toward electronic medical records (EMRs) to
increase the efficiency and quality of patient care, the information contained in the EMRs, including
protected health information and personally identifiable information, may ultimately contain the full identity
profile of an individual, potentially allowing a hacker to open new credit card accounts, access prescription
drugs, and submit fraudulent medical reimbursement claims. The Affordable Care Act has resulted in over
20 million people gaining insurance coverage under the law,59 which in turn has created over 20 million new
opportunities for hackers.
Vulnerabilities
Generally speaking, combating cyber threats has not been a top priority for health care providers.60 With
health care providers rightly focused on delivering appropriate health care to their patients, and health care
carriers focused on processing claims, necessary institutional resources are not always devoted to
upgrading and maintaining IT security systems. This has led some experts to conclude that the industry is
“woefully behind” when it comes to cybersecurity preparedness.61 The FBI even issued a private industry
notification to health care providers in early 2014 indicating that their cybersecurity systems lag behind other
industries.62 Health care organizations have been slower to embrace some security measures such as
sophisticated backup systems. A recent report from the State of California concluded that the health care
industry must improve upon even more basic cybersecurity, such as encrypting its data.63 The report found
that over 50% of compromised health care sector records in California were the result of a failure to encrypt
data, compared to about 16% in other sectors.64 Furthermore, a two-year study of health care facilities,
medical devices, web applications, and health care data facilities performed in 2014 and 2015 concluded
that the health care industry is “in turmoil” when it comes to cybersecurity readiness.65 This study, released
in early 2016, identified the following two major flaws: 1) a hyper-focus on the internal protection of patient
records to the exclusion of addressing external threats or protection from a cyber perspective; and 2) the
cyber threats that are addressed and recognized drastically underestimate the sophistication and potential
specificity with which some adversaries will target patient health records.66 In other words, current industry
strategies tend to be driven by regulatory compliance with a focus on preventing an indiscriminate attack to
obtain the information contained in patient records, while largely ignoring potential targeted attacks.67
Another contributor to the health care industry’s vulnerability relates to the sheer number of individuals or
organizations with privileges to access EMRs, with university researchers concluding that, on average, at
least 30 individuals and/or organizations can validly access a typical medical record.68
Emerging Trends
With all of these threats and vulnerabilities, what can we expect to see in the short term? Currently, the
most-talked-about threat is ransomware. Ransomware is a form of malware—an umbrella term for
malicious or intrusive software—that cybercriminals use to encrypt an electronic system so that the entity
is no longer able to access it’s own data. The hackers then hold the data hostage, demanding a ransom
payment in exchange for the decryption key to unlock the files, all while threating to delete the files if the
ransom is not paid. The typical initial ransom amount ranges between $500 and $2,000, and is typically
payable in Bitcoins.69
In January 2015, the FBI issued a warning regarding a specific type of ransomware known as CryptoWall,70
where victims became infected with the virus by clicking on links in malicious emails apparently originating
from legitimate businesses or through compromised links or advertisements on websites.
In the first two months of 2016, there were three reported ransomware attacks on health care organizations.
Two attacks affected hospitals in Texas and California, while the victim of the third attack was the Los
Angeles Department of Health. This attack in February 2016 was particularly interesting, as it appears to
have been indiscriminate. The LA Department of Health’s investigation identified the remnants of
ransomware on five computers, but the attack did not appear to have spread beyond those computers, and
no operations were affected.71 Fortunately for the LA Department of Health, the users of the infected
computers did not have unrestricted access to all of its data, likely preventing the attack from having a more
devastating effect.72
By contrast, the ransomware attack that hit a California hospital in February 2016 may have been a targeted
attack. In that case, the ransom was set at $17,000,73 more than would be expected from an indiscriminate
attack. Higher ransom levels tend to indicate targeted attacks because automated malware does not know
who it is targeting, so the ransom levels tend to be lower and therefore more likely to be paid by anyone the
malware infects, including individuals. In this particular case, all of the hospital’s data was encrypted and
unusable, and although the hospital’s statement indicated that the attack did not affect the delivery of patient
care,74 a doctor at the hospital told the press that clinical treatments could have been affected due to
inaccessible medical records. He also stated that outpatients missed treatments because of the attack.75
This broad exposure of hospital data suggests that the cybercriminals could have gained access to the
account of a high ranking official of the hospital with unlimited system access to the hospital’s data. Indeed,
the FBI said recently that hackers are increasingly “doing their homework” on senior personnel at deeperpocketed organizations before launching “spearphishing,”76 targeted phishing attacks, or other campaigns.77
These attacks also tend to be more difficult to detect, as cybercriminals are able to mask the
communications in such a way that the organization itself might not be able to determine which individual’s
account was compromised. Some reports conclude that cybercriminals turn to ransomware as a direct result
of the huge volume of data breaches over the past few years and, in particular, health care breaches in
2015.78
Internet of Things
Some predict that these attacks will spread beyond the hospital itself to what is estimated to be a $117
billion market by 2020, the health care segment of the internet of things (IoT).79,80 The IoT is the increasingly
large network of physical objects that can collect and exchange data by virtue of being connected to the
Internet. The health care segment of IoT can be broken up into two broad categories: 1) medical devices,
including pacemakers, insulin pumps, surgical and anesthesia devices, ventilators and infusion pumps; and
2) wearable technology, including health and fitness tracking wristbands, watches, and goggles. A
ransomware attack on an IoT device may be used as an entry point through which cybercriminals access
larger health care data networks to hold that data ransom. We could also see a situation where a
cybercriminal actually takes control of the device e.g. pacemaker and threatens to turn it off or disrupt its
operation if the patient does not pay a ransom. In July 2015, the Food and Drug Administration (FDA)
issued a safety communication warning that a computerized infusion pump then used in hospitals was
vulnerable to cyber attack.81 The FDA said that the device could be accessed remotely through a hospital’s
network, which “could allow an unauthorized user to control the device and change the dosage delivered
by the pump.”82
Prioritize Prevention
Even if the vulnerabilities in electronic systems, IoT-connected medical devices, and wearable technologies
are corrected, cyber risk will persist. No matter the technological advances, many argue that the human
link in the security chain makes any system vulnerable.83 Employees who continue to respond to
indiscriminate phishing or spearphishing, or continue to click on links or visit unsecure websites create the
risk that malware and ransomware may be introduced into a network, Experts agree that basic security
awareness is no longer sufficient, since cybercriminals are becoming increasingly sophisticated and
persistent. While it has been suggested that organizations should increase their efforts by running
simulations to train all employees on how to recognize and react to phishing attacks, the greatest risk may
come from failing to prevent the attack in the first place. Thus, as the health care industry continues to
invest in technological deterrents to cyber risk, it must not forget to provide adequate educational and
training resources to the human element so it too can become a stronger link in the cybersecurity chain.
Equally important, the health care provider and its risk manager must recognize the potential threat of
cyber liability and protect itself accordingly.
II. Electronic Medical Records
EMRs in the Healthcare Setting
Recording patient information electronically originated in the late 1960’s, when Lawrence Weed introduced
the concept of the Problem Oriented Medical record into medical practice.84 Then in 1972, the Regenstreif
Institute developed the first medical record system.85 Although the concept was widely hailed as a major
advance in medical practice, physicians were resistant to the technology for decades. Today, federal
regulations have prompted health care providers to adopt a system of maintaining electronic medical
records (”EMRs”), by for example creating incentive programs for Medicare and Medicaid payment
participation for those who utilize EMRs.
By 2014, 76% of hospitals had adopted at least a basic EMR system. Additionally, 97% of acute care
hospitals possessed EMR technology certified to meet federal requirements.86 Uniformity of these systems
however is not the norm. Presently, there are hundreds of EMR programs on the market.87
The push toward EMRs is aimed at improving the quality of care and efficiency for healthcare providers and
their patients, by allowing practitioners over various fields to have access to a common database of
information on their patient, particularly in the hospital setting. Physicians using EMRs report that they most
appreciate the reports generated through the system; the ease of data entry and retrieval, particularly
between different practice areas; and the positive effect on overall patient care, including communicating
with patients through online portals.88
Conversely, the most prevalent user complaint with EMRs is that it leads to decreased productivity. In
addition to the learning curve in implementing an EMR system, physicians feel that EMRs take away from
attentiveness at the time of patient interaction because they are performing data entry while discussing signs
and symptoms with the patient.89
A 2005 study published in the Journal of the American Medical Association found widely-used computerized
physician order entry systems facilitated 22 different types of medication error risks, including pharmacy
inventory displays being mistaken for dosage guidelines, inflexible ordering formats that generated incorrect
orders, and CPOE display screens that prevented a coherent view of the patient's medications. Additionally,
75 percent of clinical staff surveyed reported that they encountered these error risks at least weekly, if not
more often.90
A common complaint with some EMR systems relates to the difficulty in flagging important information. For
example, in 2014 the first U.S. Ebola patient presented to a hospital in Dallas, Texas. During intake, the
patient advised the nurse that he had recently traveled to Liberia. The nurse documented this travel
information into the EMR system. However, the doctor did not see this information when he reviewed the
patient’s EMR, and as a result incorrectly discharged the patient, rather than placing the patient in
quarantine. Three days later, the patient returned to the hospital, was diagnosed with Ebola, and placed in
quarantine. The hospital and its EMR system came under scrutiny and criticism for failing to diagnose and
quarantine the man three days earlier. Upon investigation, it was determined that the Hospital had different
work flow systems for Nurses and Doctors which were not synchronized.91
One of the most common concerns relates to the health care providers’ overreliance on a simple EMR
function such as copy and paste, which has the potential to perpetuate significant mistakes, leaving a long
trail of errors less likely to be corrected.92 The copy and paste function may also present issues when it
comes to determining authorship of a note. Is the note newly created, or was it copied from a prior author?
EMRs in the Legal Setting
Technology, electronic medical records, and electronic health records are changing the face of litigation.93
What constitutes a “legal medical record?” In the paper world, a medical record is a physical folder
containing papers a healthcare provider relies upon to make treatment decisions.
In the electronic world, a healthcare provider sees certain screen shots in a particular order, rather than
seeing the entire folder. Additionally, the layout of a chart can change with each printing, which becomes
especially problematic in litigation when one version of the chart is produced to plaintiff’s counsel and then a
different version of the same chart is produced at a later date. In addition, printed charts look very different
than the screen view the healthcare provider sees when making diagnosis and treatment decisions.
While EMRs are often organized, detailed and more legible, they tend to be very large, and the vital
information is dispersed throughout, making the information difficult to locate. Additionally, EMRS often
contain a long list of fields, many of which are inapplicable to the issues in the litigation, and as such must be
thoroughly reviewed to determine what is relevant and discoverable, prior to being exchanged.
While metadata94 may provide useful information, it is also vulnerable to security breaches. Metadata can be
corrupted and hacked. Nonetheless, judges are more and more willing to require its production in litigation.
The plaintiff bar chomps at the bit to get to the metadata. Inasmuch as metadata records every single
interaction with the EMRs at issue, the plaintiff attorney is hoping to find some proof of record tampering, or
review of the EMR by a healthcare provider who had previously denied seeing the record.
Privacy Lawsuits and the Failure to Protect EMRs
As the healthcare industry approaches 100% conversion to EMRs, the risk of sustaining a data breach
and/or an unintentional disclosure of confidential identifiable medical information is at its apex. HIPAA seeks
in part to ensure privacy and confidentiality of identifiable health information95, and imposes regulatory
enforcement and damages upon healthcare for compliance failures. Although HIPAA does not provide
patients with a private cause of action to recover damages sustained as a result of the disclosure of medical
information, patients have nevertheless pursued such claims by relying upon the traditional causes of action
sounding in negligence, invasion of privacy, and breach of contract.96 In pursuing these causes of action,
some courts have expressly acknowledged that the HIPAA regulations could be used to establish the
standard of care in cases when health care providers are sued for failing to maintain and protect the privacy
of EMRs.97
In addition to these traditional causes of action, many states have enacted statutes that authorize private
causes of action for breach of state law protecting patient or medical records confidentiality.98 Some of these
privacy statutes also authorize the recovery of punitive damages for willful or reckless disregard of the
patient’s privacy rights.99 The Plaintiffs’ bar has begun incorporating violations of these statutes in their
complaints, alongside other traditional common law causes of action, in order to increase damage claims.
In order to protect the patient as well as the health care provider, extensive and repetitive training of medical
staff is essential. Educating users not only on the process to input information, but also on metadata and its
all knowing surveillance of the EMR, can help avoid unnecessary and unfortunate errors in omission and
commission and consequently protect healthcare providers from unnecessary exposure.
An Update On Damage
Mitigation Measures
States continue to enact legislation in an effort to control the escalating costs associated with healthcare
malpractice claims, including requiring mandatory pre-screening of healthcare malpractice claims; prelitigation arbitration; and damage caps. These legislative efforts have been met with mixed success. While
caps in Texas have drastically reduced both the frequency and severity of healthcare malpractice claims,100
while in Georgia, frequency and severity have been steadily rising since the Georgia Supreme Court struck
down the state’s $350,000 cap on non-economic damages.101
In addition to recent developments outlined below, we have included in Section II of the Appendix a detailed,
state by state summary of healthcare malpractice damage caps in the United States as of the publication of
this report. I. Damage Caps
Missouri
In 2015, the Missouri legislature addressed a 2012 ruling by the Missouri Supreme Court that declared the
State’s 2005 healthcare malpractice caps to be unconstitutional.102 The new law states that healthcare
malpractice actions are now statutory rather than common law causes of action.103 The Legislators believe
this modification will ensure survival against anticipated constitutional challenges.104
Under the revised legislation, a $400,000 cap on all non-economic damages, including claims of pain,
suffering, mental anguish, inconvenience, physical impairment, disfigurement, loss of capacity to enjoy life,
and loss of consortium105 applies in healthcare malpractice actions, with the cap increasing to $700,000
where catastrophic personal injury or wrongful death occurs.106 “Catastrophic personal injury” includes
quadriplegia, paraplegia, loss of two or more limbs, brain injuries involving permanent cognitive impairment,
irreversible major organ failure, or severe vision loss.107 Nevada
The Nevada Supreme Court upheld the constitutionality of the state’s $350,000 statutory cap on noneconomic
damages in medical malpractice/professional negligence suits,108 and also ruled that the $350,000 cap does
not apply separately to each plaintiff and defendant. The cap on non-economic damages was originally
approved by Nevada voters in 2004 as part of a medical malpractice reform ballot measure called the “Keep
Our Doctors in Nevada” initiation amid fears that doctors would flee from the state because of high medical
malpractice costs.109
Utah
The Utah Supreme Court struck down the state’s healthcare malpractice non-economic damages cap of
$450,000, first instituted in 1986, as unconstitutional in cases alleging wrongful death.110 The cap remains in
place for non-death related claims.111
Florida
In 2014, the Florida Supreme Court ruled that the legislative caps imposed on non-economic damages in
wrongful death cases were unconstitutional.112 In 2015, the Fourth District Court of Appeals took it one step
farther and ruled that Florida’s non-economic damages caps for non-death cases also violated the Equal
Protection Clause of the Florida Constitution.113
Indiana
Under the current Indiana law, physicians are responsible for the first $250,000 in damages, and the claim is
capped at a total of $1.25 million to any patient for one act of malpractice. Indiana Gov. Mike Pence signed
into law legislation which includes two increases to the caps: Effective July 1, 2017, the caps will increase to
$400,000 and $1.65 million respectively; and the caps will again increase on July 1, 2019 to $500,000 and
$1.8 million respectively.114 The law also increases the total amount of attorney fees recoverable from the
Indiana Patient Compensation Fund in a healthcare malpractice action from current limit of 15%, to 32% of
any recovery under the act.115
Oregon
The Oregon Legislature considered a bill in 2016 to raise the non-economic damage cap in wrongful death
cases from $500,000 to $1.5 million.116 The bill was ultimately defeated, with Democrats supporting the
measure and Republicans opposing it.117
II. State Compensation Funds
Currently, thirteen states have established Patient Compensation Funds or state-operated malpractice
insurance pools in an effort to address the rising costs associated with healthcare malpractice claims.
We have included in Section III of the Appendix a detailed summary of each of the thirteen state
compensation funds.
Some states have established compensation funds that apply to a narrow, yet significant, subset of medical
malpractice claims. By way of example, the Florida Birth-Related Neurological Injury Compensation Plan
(“NICP”) provides compensation, on a no-fault basis, for a limited class of catastrophic, birth-related
neurological injuries that result in unusually high costs for custodian care and rehabilitation.118 In exchange for
compensation under the NICP, participants give up their rights and remedies of recovery under tort law.119
Likewise, the New York State Medical Indemnity Fund provides a monetary source for future health care costs
associated with birth-related neurological injuries.120 The Virginia Birth-Related Neurological Injury
Compensation Act removes from the tort system claims against physicians who practice obstetrical medicine
and replaces the claim with a right to compensation under the fund.121 The Virginia Act, however, does not
foreclose claims of the infant’s mother for injuries she suffered during delivery, nor does it foreclose civil
actions against physicians or hospitals where there is clear and convincing evidence that the injury was
caused willfully or intentionally.
Other states have taken a different approach, establishing compensation funds which apply to a wider range
of healthcare-related claims. These funds essentially act as excess coverage for practitioners and institutions.
In addition to the Indiana statute discussed above, Louisiana, Nebraska, New Mexico, and Wyoming have
enacted statutory provisions which provide excess protection to healthcare providers, with varying levels of
per claim limits.122 Kansas, Pennsylvania, and South Carolina have enacted similar excess compensation
funds, with one important distinction-- the liability of the participating members is not capped as it is in the
other states.123 Wisconsin has also enacted a similar excess fund, (the Injured Patients and Families
Compensation Fund), for purposes of paying the portion of medical malpractice claims which are in excess of
statutory minimal limits.124 Although the Wisconsin fund itself is not capped, any payments by the Fund for
non-economic damages are subject to the state statutory cap.125
In a variation on the excess insurance approach, West Virginia has created the West Virginia Patient
Compensation Fund, which provides compensation to claimants in medical malpractice actions for any portion
of economic damages awarded that is uncollectible as a result of limitations on economic damages, or as a
result of the operation of joint and several liability principles and standards.126 The benefits under the West
Virginia Fund are capped, and payments from the Fund may be used to pay reasonable attorney fees.127
III. Challenging Economic Damages
Via the Affordable Care Act
AIG Healthcare Malpractice Claims pioneered an aggressive strategy of utilizing the Affordable Care Act
(“ACA”) to defend alleged economic damages proffered by plaintiffs through extravagant life care plans.
During 2015, AIG Healthcare Malpractice Claims has been an industry leader in successfully advancing these
ACA arguments across the country. Our innovative approach to defending damages has lead to many
positive results throughout the U.S. As discussed below:
1. Courts in Arkansas, Arizona, California, Georgia, Hawaii, Ohio, and Tennessee have ruled that
evidence related to the ACA and its impact on reducing future medical costs is admissible at trial;
2. Other courts have allowed ACA evidence to be introduced in post-trial collateral source offset
hearings;
3. While still others permitted evidence of Medicare and Medicaid related offsets.
In Jones v. MetroHealth Medical Center,128 the Ohio Court of Appeals became the first appellate court in the
country to address the substantive merits of these arguments. The plaintiff alleged that the defendants, a
Medical Center and a physician, were negligent in the delivery of her son. The jury agreed and awarded the
plaintiff $14.5 million, $8 million of which was for the infant’s future economic damages. Following a post-trial
collateral source hearing, the court reduced the award to $1.7 million, citing the plaintiff’s future access to
Medicare, Medicaid and private insurance through the ACA. The Ohio Court of Appeals upheld the $6.3
million reduction, concluding that the child’s future medical expenses would be covered by Medicare,
Medicaid, or private insurance. In its ruling , the Court rejected the plaintiff’s argument that the continuation of
these programs was too speculative. The Court reasoned that accepting the plaintiff’s “argument at face value
would effectively bar all offsets because of the possibility that government programs might, someday, end.”
In Stayton v. Delaware Health Corporation,129 the plaintiff’s medical bills totaled approximately $3.7M, but
were fully satisfied through Medicare payments of $263K, a 92% reduction.130 Defendants sought to limit the
past damages to the amount actually paid by Medicare. The Delaware Supreme Court agreed, holding that
Medicare payments were not collateral sources and the jury should only be permitted to hear evidence of the
Medicare paid rates. In doing so the Court recognized several key facts: (1) discounting medical bills is the
rule rather than the exception in the industry; (2) only a small fraction of persons receiving medical care
actually pay billed charges; and (3) that small group of uninsured or self-insureds is expected to decline as a
result of the ACA.131The Court also refused to follow other states that permit the jury to hear evidence of both
the billed and paid amounts.132 The Court reasoned that the better course is to treat the paid amounts as
dispositive of the issue, because the plaintiff never paid the billed rate and would not be required to pay above
the amount actually paid by Medicare.133
Perhaps even more significantly, in Stayton, the Chief Justice of the Delaware Supreme Court acknowledged
that it may be time to revisit the common law collateral source rule134 in light of the enactment of the ACA. In
particular he stated:
“The case before us calls into question the wisdom of applying the collateral source rule itself an exception to the general rule of damages that a plaintiff is entitled to be made whole
and nothing more – in its current form, in an era where we are closer to achieving universal
healthcare, and where rising healthcare costs are reducing access to care and harming our
nation’s economic health.’135
In Brewington v. Unites States of America,136 the court held that evidence of future benefits available under
the ACA was admissible under California’s MICRA statute. The court further held that current premiums and
coverage afforded through California’s state health care exchange provided a reasonable basis upon which to
make future projections.
Other California courts have also permitted evidence regarding the impact of the ACA on plaintiffs’ future
medical care. In Valdez v. Hazany, MD,137 the California Superior Court denied the plaintiff’s motion to
exclude evidence regarding the admissibility of the ACA. Notably, the Court highlighted the fact that the ACA
has withstood two challenges in the Supreme Court, and that coverage under the ACA is not too speculative.
The Court ultimately held that the defendants were allowed to offer expert testimony regarding the costs of
coverage for the plaintiff’s future medical care. Similarly, the Court in KuhlMann & Perkins v. Johnson &
Johnson Health Care Systems138 denied the plaintiff’s motion to exclude evidence of future medical benefits
from collateral sources. In Ihly v. Regents of the University of California139 and Contreras-Madrigal v.
Hollywood Presbyterian,140 defendants’ experts were permitted to testify at trial regarding the ACA and
available insurance policies.
In Donaldson v. Advantage Health Physicians, PC,141andChristy v. Humility of Mary Health Partners,142 both
courts denied plaintiffs’ motion to preclude evidence related to the ACA, finding that health insurance under
the ACA is the law of the land and reasonably likely to continue in the future
In Sodjago v. Pediatrix Medical Group of Georgia, P.C.,143the court held that the plaintiff had opened the door
to ACA evidence through the direct testimony of their life care planner.
There is also a growing trend among states to allow a discussion of insurance to the extent that it affects the
reasonable value of medical care. Courts taking this approach generally have acknowledged the difference
between what is billed by providers and what they are ultimately paid.144 They recognize that the amounts
charged are largely fictitious. For example, the Montana Supreme Court held that evidence of the reasonable
value of medical services can be challenged by reference to Medicare paid rates as along as the defendant
did not mention that the specific plaintiff was covered by Medicare.145
Similarly, in Massachusetts, the court acknowledged that billed charges are largely fictitious, and concluded
that a witness could testify as to the range of amounts accepted as payment for the particular services at
issue, but could not testify as to what was actually paid by or on behalf of the plaintiff.146
Likewise, the Mississippi Supreme Court ruled that discovery of collateral sources was permissible because it
could be relevant to the reasonable value of medical care,147as did a federal court in Georgia.148
In Tennessee, the Court of Appeals noted that a medical care provider’s billed charges may not be
considered reasonable because (1) they do not reflect what is actually being paid in the market place, and (2)
medical care providers further their own economic interests when they agree to contracts discounting charges
to insured patients. Thus, the court held that defendants may present evidence at trial of what providers
accept as payment, without specifically referencing insurance. Significantly, the federal courts in Tennessee
have gone one step further, holding that the billed rates are inherently unreasonable and inadmissible.149
While there have also been adverse decisions nationally, many of the early unfavorable decisions focused on
the future viability of the ACA.150 For example, Pannacciulli v. Belof,151 a New Jersey Superior Court judge
denied the application of the ACA to reduce the plaintiff’s future damages claims based, in part, on the
rationalization that the "longevity of the ACA is overwhelmingly called into question by the upcoming
government election." Although leave for appeal of the decision was filed, the case settled prior to any
appellate decision.
The ACA, has now survived two challenges before the United States Supreme Court,152 There is little
question that continuing efforts to expose the fiction of the plaintiffs’ life care plan is having a positive impact
on mitigating economic damages. Life care planners and economists are struggling with whether and how to
address the ACA, knowing that their credibility is on the line. With every success, the road gets a bit easier to
navigate, but many challenges lie ahead.
IV. Apologies, Transparency and Communication
Research suggests that a key to reducing the filing of healthcare malpractice claims is communication.153 A
perceived culture of secrecy in the healthcare industry, coupled with perceived doctors’ hesitation to show
empathy, resulted in a “medical malpractice liability crisis” across the nation.154 The American Medical
Association’s Code of Medical Ethics states that when a patient suffers medical complications which may
have resulted from a physician’s error, the physician is ethically required to disclose to the patient all facts
necessary to ensure the patient understands what has occurred.155 The Code further states that “concern
over legal liability that might result from full disclosure should not affect the physician’s decision to deal
candidly with a patient.”156 Despite these words, doctors and hospitals are often advised to refrain from
making such statements to patients and families, over concern that the matter may end up in litigation.157
Currently, 36 states, the District of Columbia and Guam have enacted laws, commonly referred to as “sorry
laws” or “apology laws”, to encourage expressions of sympathy, condolences, or apologies between physician
and patient without the fear of the apology being misconstrued as an admission of liability at trial.158
One study attempted to quantify the effect of apology laws on the value of a claim, concluding that the
passage of apology laws likely resulting in increased expressions of sympathy and compassion, has
accounted for a 12.8% decrease in the size of malpractice payments.159
In addition to the so called “sorry laws,” many hospitals have eschewed the traditional “deny and defend”
strategy, and instead adopted communication and/or transparency programs aimed at keeping patients
apprised of any errors or unanticipated outcomes.”160 Another study found that accepting responsibility was
more effective than expressing sympathy, and that “an apology gave the patient a sense of satisfaction and
closure, which led to faster settlements and less demand for damages.”161
Some states place a time limit during which the law protects the apology to encourage quicker
communication. For example, Washington162 and Vermont163 require a doctor to notify a patient within 30
days of a medical error, or within 30 days of when the provider knew or should have known of the error. Illinois
provides stricter time constraints, with an apology being protected only if it is made within “72 hours of when
the provider knew or should have known of the potential cause of such outcome.”164 Maine, Nebraska,
Virginia, Vermont, Louisiana, Maryland, South Dakota, Indiana, Hawaii, California, Florida, Tennessee, Illinois,
Missouri, New Hampshire, Idaho and the District of Columbia all have laws which distinguish between
apologies, which are inadmissible, and statements of fault, which are admissible.165
Conversely, the Federal Rules of Evidence state that “an expression of sympathy offered by the wrongdoer
outside of settlement negotiations or mediation may not be protected and may be admissible evidence”166
Thus, the healthcare provider may face federal exposure, despite protection under the state law.
Case Studies
Stanford Hospital’s PEARL Program
Stanford University Medical Indemnity and Trust Insurance (“SUMIT”) launched the Process for Early
Assessment and Resolution of Loss, or PEARL program in 2007.167 Under Pearl, hospital staff is trained to
report problems as soon as the staff becomes aware of them, without fear of punishment.
Additionally, Pearl focuses on early investigation, as well as communication and resolution with the aggrieved
party. As a result of implementing PEARL, the frequency of lawsuits filed between 2009—2014 decreased by
50%, and indemnity costs decreased by 40%, when compared to the period 2003-2008.168
VA Model in Lexington, Kentucky
After the VA Medical Center sustained verdicts in two malpractice trials totaling more than $1.5 million,
administrators convened a risk management team to identify, investigate, and prepare to address incidents
that could result in litigation.169 The resulting program includes the following: 1) Proactive reporting of potential
errors; 2) Prompt review and investigation; 3) Notifying and meeting with patient/family; 4) Full disclosure of
error at in person meeting; and 5) Fair remedy, including compensation.170
After implementation of the program, the loses paid by the VA Medical Center fell well below those of other
facilities that did not follow this program.171 A 15-year analysis of malpractice activity found that the average
payout at the VA facility in Lexington was $14,500 less the average payout for VA facilities across the
country.”172
University of Michigan Health System’s Disclosure and Offer Model
In late 2001 the University of Michigan Health System’s (“UMHS”) implemented an approach to responding to patient
injuries designed to “promote patient safety through the principles of honesty, transparency and accountability.”173
The program was “informed by two central observations: (1) honesty is indispensable for safety improvement,
and (2) short-term focus on financial risk impedes long-term improvement.”174 The model’s purpose was to
depart from the traditional “deny and defend” approach and instead: openly communicate with patients about
errors; compensate patients quickly and fairly when inappropriate care causes injury; support staff vigorously
when appropriate care has been provided; and reduce future injuries and claims through application of
lessons learned through the discovery process.175
The UMHS reports the rate of new claims has decreased from approximately 7 per 100,000 patients to fewer
than 5 per 100,000 patients176, and the rate of lawsuits has declined from 2.13 per 100,000 patients to
approximately 0.75 per 100,000 patients.177 Additionally the median time from claim to resolution declined
from 1.36 to 0.95 years.178
Conclusion
Healthcare malpractice lawsuits stem in part from anger, an absence of communication, and the perception of
little to no compassion from healthcare providers. Injured parties want to know what happened, how it will be
prevented from happening again in the future, and how the wrongdoer will be held accountable. Key to
addressing all of these concerns is communication. Training the healthcare providers to communicate both to
the facility administration as well as the aggrieved party has been shown to be an effective method of
containing potential exposure, while improving the relationship between patient and provider.
V. Negotiation Techniques
By Amanda Stobaugh
Senior Claims Analyst, Healthcare Malpractice Claims, Dallas, TX.
In our 2015 publication we discussed “The Anchor Number” as a trial-related concept.179 In this publication,
we would like to expand on this approach in the context of settlement negotiations.
In settlement negotiations, both parties have a reservation price, defined as “the maximum amount a
[defendant] is willing to give up or the minimum amount a [plaintiff] is willing to accept.”180 The range between
these two figures is the zone in which settlement can theoretically occur.181The value within the zone where a
claim is ultimately resolved, as well as the zone itself, can be influenced by the anchor number.
While defendants are often wary of making the first offer for fear of giving away too much information to the
other side,182a fact-based, reasonable first offer should made once sufficient information has been obtained to
appropriately evaluate the claim.183 The first offer more strongly influences the final agreement than any other
subsequent behavior by the parties.184 This principle, referred to as the ‘anchoring effect’, is defined as “the
tendency for negotiators to be overly influenced by the other side’s opening bid, however arbitrary.”185
Anchoring stems from the common human tendency to rely heavily upon the first piece of information they
receive (the "anchor") when making decisions.186 In the context of settlement discussions, those involved in
the negotiations use this initial piece of information, the “anchor,” to make subsequent rationalizations by
adjusting away from that anchor. As a result, there is an unrealized bias toward interpreting other information
off of the anchor 187 Studies suggest the anchoring effect is so strong that even when people know they
should disregard it, they are unable to do so.188
While providing the plaintiff with a reasonable initial offer prior to receiving a demand will frame the
negotiations in the defendant’s favor, a first offer that falls substantially below reasonable expectations is
unlikely to be successful.189 To the contrary, an offer that appears unreasonably low can become an
impediment to resolution, as it may cause the defendant to be viewed as unfair and untrustworthy.190
Anchoring can also be accomplished by making multiple equivalent simultaneous offers (“MESOs”).191 For
example, you may offer the plaintiff (1) a cash only option; (2) a cash sum along with a structured settlement
proposal; or (3) an alternative structured settlement proposal with payouts at significant times for the plaintiff’s
needs. Providing MESOs to the plaintiff sends the message that you are flexible, and will likely elicit
information about the plaintiff’s thought process based upon the varying reactions to each offer.192 It has been
shown that adding perceived value to the plaintiff through MESOs increases the likelihood of reaching a
settlement.193
Despite the urge to play it close to the vest, defendants should take control of the settlement process early
and steer settlement discussions through their anchor number in an effort to effectively and reasonably control
potential exposure.
Conclusion
The Healthcare Malpractice Landscape in the United States remains a concern, despite decades-long
attempts to control exposure. While some progress has been made, challenges that seriously affect the
industry as a whole remain. In an effort to control ever spiraling costs, it is imperative that the medical
community continue its efforts to control the risks posed by healthcare malpractice claims.
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94
Metadata is data that serves to provide context or additional information about other data. For example,
information about the title, subject, author, typeface, enhancements, and size of the data file of a document constitute
metadata about that document. It may also describe the conditions under which the data stored in a database was
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http://www.businessdictionary.com/definition/metadata.html
95
United States v. Elliott, 676 F. Supp. 2d 431, 439 (D. Md. 2009) (stating that HIPPA was passed to ensure an
individual's right to privacy over medical records.
96
See Byrne v. Avery Ctr. for Obstetrics & Gynecology, P.C., 314 Conn. 433, 444–45, 102 A.3d 32, 41 (2014)
(collecting cases).
97
Byrne v. Avery Center for Obstetrics and Gynecology, 314 Conn. 433 (2014)
98
See e.g. Cal. Civ. Code §§56.35 and 56.36 (authorizing private cause of action for nominal damages of $1,000
and/or actual damages sustained, punitive damages not to exceed $3000, attorneys’ fees up to $1000 and litigation
costs); Ariz. Rev. Stat. § 12-2296 (private cause of action)
99
Conn. Gen. Stat. § 19a-550(e)
100
http://www.insurancejournal.com/news/southcentral/2013/09/03
101
AON report at 20-21.
102
Missouri Senate Bill 239.
http://www.senate.mo.gov/15info/BTS_Web/BillText.aspx?SessionType=R&BillID=1173008
103
Id.
104
http://www.healthcarelawinsights.com/2015/05/missouri-tort-reform-reformed-again-medical-malpractice-damagecaps-reinstated/
105
Id.
106
Missouri Senate Bill 239.
107
Id.
108
Tam v. Eighth Jud. Dist. Ct., 358 P.3d 234 (Nev. 2015).
109
http://www.reviewjournal.com/news/nevada/nevada-justices-uphold-medical-malpractice-damages-cap
110
Gregory Lynn Smith v. United States of America, 356 P.3d 1249 (Utah 2015).
111
http://www.marylandmalpracticeteam.com/2015/08/state-court-strikes-down-non-economic-damages-cap-formedical-malpractice-resulting-in-death.html
112
134 So. 3d 894 (Fla. 2014)
113
2015 WL 3973075 (Fla. 4th DCA July 1, 2015)
114
Indiana Senate Bill 28. https://iga.in.gov/legislative/2016/bills/senate/28
115
Id.
116
Oregon House Bill 4136. https://olis.leg.state.or.us/liz/2016R1/Measures/Overview/HB4136
http://oregonbusinessreport.com/2016/02/house-votes-to-raise-cap-on-noneconomic-damages/
118
F.S.A. § 766.301
119
F.S.A. § 766.303
120
New York Public Health Law § 2999, g-j.
121
Va. Code § 38.2-5000 et seq.
122
La. R.S. 40:1231.1 et seq.; Neb. Rev. St. § 44-2829 et seq.; N.M.S.A. 1978, § 41-5-1, et seq.; Wyo. Stat. Ann. §§
26-33-101 to 26-33-105
123
K.S.A. 40-3401 et seq.; 40 P.S. § 1303.712 et seq.; S.C. Code 1976 § 38-79-410 et seq.
124
W.S.A. § 655.27 et eq.
125
W.S.A. § 655.017 and W.S.A. § 893.55
126
W.Va. Code § 29-12D-1 et seq.
127
W.Va. Code §§ 29-12D-2 and 29-12D-3
128
No. CV 11-757131 (Ohio Ct. App. 2016)
129
117 A.3d 521 (Del. 2015)
130
Id. at 523.
131
Id. at 530.
132
Id. at 533.
133
Id.
134
Under the collateral source rule, a tortfeasor has no right to any reduction of damages because of payments or
compensation received by the injured party from an independent source. Miller v. State Farm Mut. Auto. Ins. Co.,
993 A.2d 1049, 1053 (Del. 2010).
135
Id. at 535.
136
2015 U.S. Dist. LEXIS 97720 (Dist. Ct., Central Div. 2015)
137
No. 56-2014-00451388-CU-MM-VTA (Cal. Sup. Ct. 2016)
138
No. RG13 675753 (Cal. Sup. Ct. Oct. 22, 2015)
139
No. B259042 (Cal. Sup. Ct. 2014)
140
No. BC466778 (Cal. Sup. Ct. 2013)
141
No. 11-09181-NH (Mich. Cir. Ct. 2015)
142
No. 2013 CV 01598 (Ohio Ct. Com. Pl. May 4, 2015)
143
No. 12EV015750 (Ga. County Ct. 2014)
144
Howell
145
Meek v. Montana Eighth Judicial Court, 379 Mont. 150 (2015)
146
Law v. Griffith, 457 Mass. 349 (Mass. 2010)
147
Williams v. Memorial Hospital at Gulfport and Nikkita Barr, No. 2015-IA-00792-SCT (Miss. Sup. Ct. July 15, 2015)
148
Houston v. Publix Supermarkets, Inc., 2015 WL 4581541 (N.D. Georgia 2015)
149
Hall v. USF Holland, Inc., No. 14-CV-2494-SHL-dkv (U.S. Dist. Ct., Western Dist. 2016); Marshall v. Lantern
Square Apartments, LLC, No. 15-cv-2752-SHL-cgc (U.S. Dist. Ct., Western Dist. 2016)
150
Brewster v. Southern Home Rentals, LLC, 2012 WL 6101985 (M.D. Ala. 2012); Joerg v. State Farm, 2015 WL
5995754 (Fl. 2015); Halsne v. Avera Health, 2014 WL 1153504 (D. Minn. 2014); Deeds v. University of Pennsylvania
Med. Ctr., 110 A.3d 1009 (Sup. Ct., Pa. 2015)
151
No. BER-L-845-12 (N.J. Super. Ct. Law Div., Jan. 22, 2016)
152
See King v. Burwell, 135 S.Ct. 2480 (2015); National Federation of Independent Business v. Sebelius, 132 S. Ct.
2566 (2012)
153
http://www.managedcaremag.com/archives/1997/8/better-patient-communications-mean-lower-liability-exposure
154
See generally Ebert, Robert E., Attorneys, Tell Your Clients To Say They’re Sorry: Apologies in the Health Care
Industry, 5 Ind. Health L. Rev. 337, (2008); See also The Daily Briefing, The Advisory Board Company, Don’t want to
be sued? Here’s what doctors should do, June 5, 2015, accessed February 23, 2016.
155
Bender, Flauren Fagadau, “I’m sorry” laws and medical liability, American Medical Association Journal of Ethics,
April 2007, Volume 9, Number 4: 300-304 (citing American Medical Association. Opinion 8.12 Patient information).
156
Id.
157
Id.
158
See Appendix, Section IV for summaries of the key provisions states that have enacted such laws. As reflected in
the Appendix, the language and scope of the statutes vary state by state.
159
Ho, Benjamin and Liu, Elaine, What’s an Apology Worth? Decomposing the Effect of Apologies on Medical
Malpractice Payments Using State Apology Laws, 8 J. Empirical Legal Stud. 179S, December 2011.
160
Budryk, Zack, Hospital apologies, communication programs gain steam, Fierce Healthcare, February 2, 2016,
accessed February 16, 2016.
161
Robbennolt JK. Apologies and settlement. Court Review. 2009;45:9097. http://aja.ncsc.dni.us/publications/courtrv/cr45-3/CR45-3Robbennolt.pdf
162
See Washington RCWA 5.64.010.
117
163
See Vermont 12 V.S.A. Section 1912.
See Illinois IL ST CH 735 Section 5/8 – 1901; Saitta, Nicole Marie and Hodge Jr., Samuel D., Article: Is It
Unrealistic to Expect a Doctor to Apologize for an Unforeseen Medical Complication? – A Primer on Apologies Laws,
82 PA Bar Assn, Quarterly 93, July 2011.
165
Id.
166
Federal Rules of Evidence Rule 408; Saitta, Nicole Marie and Hodge Jr., Samuel D., Article: Is It Unrealistic to
Expect a Doctor to Apologize for an Unforeseen Medical Complication? – A Primer on Apologies Laws, 82 PA Bar
Assn, Quarterly 93, July 2011.
167
Chin, Robin, SUMC decreases annual liability premiums, November 9, 2011,
http://www.stanforddaily.com/2011/11/09/sumc-decreases-annual-liability-premiums/ (accessed on February 22,
2016).
168
Landro, Laura, Hospitals Find a Way to Say, ‘I’m Sorry’, The Wall Street Journal, February 1, 2016.
169
Proactive Reporting, Investigation, Disclosure, and Remedying of Medical Errors Leads to Similar or lower Than
Average Malpractice Claims Costs, Service Delivery Innovation Profile, accessed February 22, 2016 citing Kraman
SS, Hamm G., et al John M. Eisenberg Patient Safety Awards. Advocacy: the Lexington Veterans Affairs Medical
Center. Jt Comm J Qual Improv. 2002 Dec; 28 (12): 646-50 [Pub Med].
170
Id.
171
A comparison of claims costs between 1990 and 1996 at the VA Medical Center in Lexington and 35 similar VA
facilities found that the Lexington facility had the sixth highest number of claims, but the eighth lowest total claims
payments, suggesting that average payout was the same or lower at the Lexington center. Id.
172
Id. Defense costs are not included in these payout rates, therefore, actual costs are higher.
173
The University of Michigan’s Early Disclosure and Offer Program, http://bulletin.facs.org/2013/03/michagans-earlydisclosure/ accessed February 23, 2016 citing Boothman R., Imhoff SJ, Campbell DA. Nurturing a culture of patient
safety and achieving lower malpractice risk through disclosure: Lessons learned and future directions. Front Health
Serv Manage. 2012; 28(3): 13-27.
174
The University of Michigan’s Early Disclosure and Offer Program, http://bulletin.facs.org/2013/03/michagans-earlydisclosure/ accessed February 23, 2016
175
Id.
176
The University of Michigan’s Early Disclosure and Offer Program, http://bulletin.facs.org/2013/03/michagans-earlydisclosure/ accessed February 23, 2016
177
Id.
178
Id.
179
See Healthcare Malpractice Claims: The Current Landscape, June 2015, p. 13.
180
Russell Korobkin, Aspirations and Settlement, 88 Cornell Law Review 1, 5 (2002).
181
See RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 607-08 (5th ed. 1998). There is a whole body of literature
that discusses how and why parties set their reservation points that is outside of the scope of this article. For further
reading on this issue see, e.g., Robert D. Cooter & Daniel L. Rubinfeld, Economic Analysis of Legal Disputes and
Their Resolution, 27 J. Econ. Literature 1067 (1989).
182
Pon Staff, Should You Make the First Offer? Making the First Move in Negotiations (December 21, 2009),
http://www.pon.harvard.edu/daily/business-negotiations/making-the-first-move-2/.
183
AIG Negotiation Toolkit, 8 (2014).
184
Max H. Bazerman & Margaret A. Neale, Negotiating Rationally 28 (1993).
185
Pon Staff, The Enduring Power of Anchors (July 6, 2012), http://www.pon.harvard.edu/daily/negotiation-skillsdaily/the-enduring-power-of-anchors/.
186
PON Archives, Definition of anchoring effect, http://www.pon.harvard.edu/tag/anchoring-effect/.
187
Negotiating Rationally at 24.
188
K. Shonk, When to Make the First Offer in Negotiation, (October 8, 2015).
http://www.pon.harvard.edu/daily/negotiation-skills-daily/when-to-make-the-first-offer-in-negotation/.
189
Russell Korobkin, Aspirations and Settlement, 88 Cornell Law Review 1, 9-10 (2002).
190
Russell Korobkin & Chris Guthrie, Psychological Barriers to Litigation Settlement: An Experimental Approach, 93
Mich L. Rev. 107, 144-47 (1994); Korobkin, Aspirations and Settlement, at 41.
191
See Pon Staff, Negotiation Strategies and Negotiation Techniques – MESO Negotiation, 2012,
http://www.pon.harvard.edu/daily/dealmaking-daily/why-you-should-make-more-than-one-offer/.
192
Id.
193
Id.
164
Appendix
I.
50 State Summary of Elder Care Statutes
State
Alabama
Alaska
Statutes and
Regulations
AL ST § 13A-6-190
through 201, “Protecting
Alabama's Elders Act.”
Criminalizes physical and emotional abuse of
elderly persons. Establishes criminal penalties.
AL ST § 22-5A et seq.,
“Long-Term Residential
Health Care Ombudsman
Act”
Creates a state ombudsman to monitor nursing
homes and other long-term residential care
facilities. Allows ombudsman to refer
complaints to state nursing home bureau of
licensure.
AL ST § 38-9- 1 through
11, “Adult Protective
Services Act of 1976.”
Gives the Alabama Department of Senior
Services the ability to investigate cases of
elderly abuse in nursing homes and enforce
criminal penalties.
AL Reg. Chapter 420-5
through 10
Rules provided by the Alabama Department of
Public Health regarding nursing facilities.
Alabama’s regulation of nursing homes closely
mirrors the federal regulations.
AK ST § 11.51. 200 et
seq.
Criminalizes endangering the welfare of elderly
persons.
AK ST § 47.24.010 et seq.
Creates reporting requirements for witnesses of
elder abuse, and includes civil penalties.
AK ST § 47.62.010 et seq.
Arizona
Summary Requirements
Criminalizes endangering the welfare of elderly
persons and creates a long term care
ombudsman.
AZ ST § 46-455(B) et
seq.
Creates a private cause of action for any person
or entity committing elder abuse.
Creates an elder abuse central registry.
Arkansas
AR ST § 9-20-101 et seq.,
“Adult Maltreatment
Custody Act.”
Yes, authorizes the
state to bring civil
action against
nursing homes for
violations of the
elder abuse law.
Establishes a long term care ombudsman to
monitor nursing facilities and initiate civil action
if necessary.
AZ ST § 46-451 et seq.
AZ ST § 46-457 et seq.
AR ST § 5-28-101 et seq.
Authorizes
Agency Lawsuits
or Creates 3rd
Party Liability?
No.
Criminalizes endangering the welfare of elderly
persons and provides nursing home standards.
Does not authorize third-party liability.
Creates rules of evidence and investigation
procedures for state investigation of elder
abuse.
AR ST § 12-12-1701
through 1720,
i
Yes, authorizes
third parties to
bring cause of
action based on
violations of
Arizona law and
authorizes attorney
fees.
Yes, authorizes the
state to bring a civil
action and impose
civil penalties.
State
Statutes and
Regulations
“Adult and Long-Term
Care Facility Resident
Maltreatment Act.”
Allows the Arkansas Attorney General to
institute civil actions against caregivers
suspected of abusing elderly persons.
AR ST § 20-10-601
through 20-10-603 “LongTerm Care Ombudsman
Act”.
Creates standards for long term care facilities
and authorizes state to bring suit.
AR ST § 20-10-1001 et
seq.
California
Colorado
Connecticut
Summary Requirements
Authorizes
Agency Lawsuits
or Creates 3rd
Party Liability?
Establishes a Resident’s Bill of Rights for longterm care residents.
Cal. Welf. & Inst. Code §
15600 through 15660,
“Elder Abuse and
Dependent Adult Civil
Protection Act.”
Creates immunity for those reporting elder
abuse in nursing facilities but allows for private
remedies against the facility itself.
Cal. Welf. & Inst. Code §
15700 through 15705.
Criminalizes elder abuse and provides civil
penalties that may be brought by state agencies
and by third parties.
Cal. Welf. & Inst. Code §
9000 et seq., “MelloGranlund Older
Californians Act”
Creates a long-term care ombudsman program.
Cal. Health & Saf. Code §
1418.91
Establishes mandatory reporting requirements
for elder abuse in nursing homes.
CO ST § 18-6.5-101
through 108.
Criminalizes elder abuse, but specifically
provides that it does not create a civil standard
of care.
CO ST § 25-1-120.
Establishes the rights of patients in nursing
facilities.
CO ST § 26-3.1-101
through 109.
Creates reporting requirements for elder abuse.
CO ST § 26-11.5 et seq.
“Long-term Care
Ombudsman Act”
Creates a long-term care ombudsman program,
with limited civil penalties for interference with
the ombudsman program.
CT ST § 17a-405 through
429.
Establishes a long-term care ombudsman
agency with investigative and enforcement
powers.
CT ST § 17b-450 through
464.
Creates reporting requirements for elder abuse,
with penalties for abuse and failure to report.
Explicitly authorizes a cause of action for
victims of elder abuse, which includes attorney
fees.
CT ST § 19a-550.
Creates a bill of rights for patients in a nursing
home
ii
Yes, authorizes
civil action and third
party lawsuits
against nursing
homes.
No.
Yes, authorizes
third party actions
for violations of
patient bill of rights
statute, as well as
state agency
actions.
State
Delaware
Statutes and
Regulations
CT ST § 53a-321
Criminalizes elder abuse.
DE ST 6 § 2580 through
284
Creates civil penalties for failure to report elder
abuse and for elder abuse. Provides a private
cause of action for third parties, with treble
damages if nursing home is found to have
violated the relevant law.
DE ST 16 § 1121
Establishes patient’s rights for nursing home
patients, among other patients.
DE ST 16 § 1131
Criminalizes elder abuse and creates reporting
requirements.
DE ST 16 § 1150 et seq.
DE ST 31 § 3901 through
3913.
District of
Columbia
Florida
Georgia
Summary Requirements
Yes, creates civil
penalties and
authorizes third
party actions.
Creates the Office of the Long-Term Care
Ombudsmen. Establishes the duties and
powers of the office.
Establishes services for elderly adults and
limited civil penalties for elder abuse.
DC CODE § 7-701
through 706.
Establishes a long-term care ombudsman, with
investigation and enforcement powers. Civil
actions for damages may be brought by
individuals, with punitive damages not to
exceed $10,000.
DC CODE § 7-1901
through 1911.
Creates reporting requirements for elder abuse.
DC CODE § 22-931
Criminalizes elder abuse.
FL ST § 400.20 et seq.,
“Nursing Home Resident’s
Act.”
Allows for civil suits to be brought by third
parties or state agencies for violations of
Florida’s nursing home residents’ bills of rights.
FL ST § 415.101 “Adult
Protective Services Act”
Creates mandatory reporting laws for elder
abuse and establishes criminal penalties.
FL ST § 825.101 et seq.
Criminalizes elder abuse.
GA ST § 30-5-2 though
10, “Disabled Adults and
Elder Persons Protection
Act.”
Criminalizes elder abuse and creates
mandatory reporting requirements.
GA ST § 31-8-50 through
100, “Long-term Care
Facility Resident Abuse
Reporting Act.”
Authorizes
Agency Lawsuits
or Creates 3rd
Party Liability?
Provides standards and patients’ bill of rights for
long term care facilities, including nursing
homes. Allows for civil suits to be brought by
third parties for violations of Georgia’s nursing
home residents’ bills of rights.
iii
Yes, provides that
civil suits may be
brought by the
state or by third
parties.
Yes, provides that
civil suits may be
brought by the
state or by third
parties.
Yes, provides that
civil suits may be
brought by the
state or by third
parties.
State
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Statutes and
Regulations
Summary Requirements
HI ST § 28-94
Criminalizes elder abuse and authorizes the
attorney general to bring a civil action.
HI ST § 346-221 through
230.
Provides procedure and penalties for agency
investigation into nursing home elder abuse.
ID ST § 39-5301 through
5308, “Adult Abuse,
Neglect and Exploitation
Act.”
Provides criminal penalties for elder abuse.
ID ST § 67-5001 et seq.
320 ILCS § 20/1 et seq.,
“Adult Protective Services
Act.”
Creates a commission on aging with an
ombudsman for the elderly.
Creates civil and criminal penalties for elder
abuse, as well as reporting requirements.
210 ILCS 45/1 et seq.,
“Nursing Home Care Act.”
The Act expressly grants nursing home
residents the right to pursue actions for
damages and other relief against nursing home
facilities. In addition to penalties and fines
levied by the state, facilities that violate the
Illinois Nursing Home Care Act can also be held
liable to residents for actual damages and costs
and attorney’s fees for negligent and intentional
violations of a resident’s rights under the act.
The Act also permits class actions to be
brought, remedies to be cumulative, and no
restrictions are placed on any party to prevent
them from seeking any additional remedies.
IN ST § 12-10-3 et al.
Establishes adult protective services. Creates
civil penalties for elder abuse, as well as
mandatory reporting requirements.
IN ST § 12-10-13 et al.
Creates a long-term care ombudsman.
IN ST § 35-46-7-1 et al.
Criminalizes elder abuse and includes rules
regarding elderly persons in nursing home care.
IA ST § 231.41 et al.
Establishes a long-term care ombudsman
program with investigative powers. Any abuse
is to be reported to the various agencies.
IA ST § 235B.1 et al.
Creates elder abuse protection rules.
KS ST § 21-5417
Criminalizes mistreatment of an elder person.
KS ST § 39-1401 through
1443.
Creates reporting requirements and protections
for nursing home residents and others in adult
care homes.
KS ST § 75-7301 et seq.
Creates a long term-care ombudsmen program
with civil enforcement powers.
iv
Authorizes
Agency Lawsuits
or Creates 3rd
Party Liability?
Yes, authorizes the
state to initiate
legal action.
No.
Yes, state nursing
home act expressly
provides for state
and private civil
action for violation
of state elder care
laws.
No.
No.
Yes, allows state
agency to bring civil
actions.
State
Kentucky
Louisiana
Statutes and
Regulations
KY ST § 209.005 et seq.
“Kentucky Adult Protection
Act”
Creates reporting requirement and criminal
penalties for elder abuse. Civil enforcement
appears to be limited to injunctive relief.
KY ST § 216.515 et seq.
Regulates long-term care facilities and provides
for rights of residents, with any violations of
those rights establishing a cause of action by
the resident.
LA R.S. § 40:2010.8 et
seq. “Nursing Home
Residents’ Bill of Rights”
Creates a nursing home resident bill of rights
under which a nursing home resident may bring
a claim.
LA R.S. § 14:403.2 et
seq.
Criminalizes abuse and neglect of older adults.
LA R.S. § 15:1501et seq.
“Adult Protective Services
Act”.
Maine
Summary Requirements
Provides additional protections elderly,
including mandatory reporting.
Authorizes
Agency Lawsuits
or Creates 3rd
Party Liability?
Yes, allows state
and third-parties to
bring civil actions,
with attorney fees if
successful.
Yes, a private
cause of action is
permitted for
violations of an
elderly persons’
nursing home bill of
rights.
ME ST 22 § 3470 et seq.
“Adult Protective Services
Act.”
Creates criminal and limited civil fines for elder
abuse.
ME ST 22 § 5106 et seq.
Provides powers to Maine’s Aging and Adult
Services Division
ME ST 22 § 5107-A
Creates a long term care ombudsmen program.
MD CRIM LAW § 3-604 et
seq.
Criminalizes elder abuse.
MD Code, Health General, § 19-340 et seq.
Creates a bill of rights for hospital patients,
including those in nursing care, as well as civil
penalties for any violations.
MD Code, Family Law,
§14-101 et seq.
Establishes an adult protective services
program. The program can refer cases to
state’s attorneys’ office.
MD Code, Human
Services, §10-901 et seq.
Creates a long-term care ombudsmen program.
Massachusetts
Mass Gen. Laws 19A § 14
through 35.
Creates additional protections for the elderly,
with civil penalties for violations. Also
establishes a long term care ombudsman
program.
Yes, allows state
agency to impose
civil fines.
Michigan
MI ST § 400.11 et seq.
Creates additional protections for elderly
persons, as well as mandatory reporting laws
for nursing home facilities. ‘
Yes, allows state
agency to bring civil
action and impose
fines.
MI ST § 400.581 et seq.,
“Older Michiganians Act”
Creates a long term care ombudsmen program.
Maryland
v
Yes, allows state
agency to impose
civil fines.
Yes, allows state
agency to impose
civil fines and
initiate actions.
State
Minnesota
Mississippi
Statutes and
Regulations
MN ST § 256.974 et seq.
Creates a long term care ombudsmen program.
MN ST § 609.231 et seq.
Provides civil and criminal penalties for
mistreatment of residents or patients in nursing
homes.
MN ST § 626.557 et seq.
Failure to report elder abuse may be considered
evidence of negligence in a civil trial but cannot
be considered negligence per se.
MS ST § 43-7-51 et seq.
“Long-Term Care
Facilities Ombudsman
Act”
Creates a long term care ombudsmen program.
The ombudsmen refer instances of elder abuse
to other agencies.
MS ST § 43-47-1 et seq.
“Mississippi Vulnerable
Persons Act of 1986”
Missouri
Montana
Nebraska
Nevada
Summary Requirements
Authorizes
Agency Lawsuits
or Creates 3rd
Party Liability?
Yes, allows state
agency to bring civil
action and impose
fines.
No.
Provides criminal and limited civil penalties for
elder abuse violations, including nursing home
abuse.
MO ST § 192.2300 et seq.
Creates a long term care ombudsmen program.
MO ST § 192.2430
Creates elder abuse reporting requirements.
MO. ST § 198.07 et seq.
Creates civil penalties for nursing home rights’
violations. Private parties may file complaint to
attorney general, who can then bring action, but
if attorney general fails to do so then the private
citizen may file a civil action.
MO ST § 565.180
Criminalizes elder abuse.
MT ST § 52-3-601 et seq.
Establishes long term ombudsman services,
including the right of counties to bring suit to
ensure equal access to long term care.
MT ST § 52-3-801 et seq.
“Montana Elder and
Persons With
Developmental Disabilities
Abuse Prevention Act.”
Provides criminal and limited civil penalties for
elder abuse violations, including nursing home
abuse.
NE ST § 28-348 through
358, “Adult Protective
Services Act.”
Provides criminal and civil penalties for elder
abuse violations, including nursing home abuse.
NE ST § 81-2237 et seq.
Creates a long term care ombudsmen program.
NV ST § 200.5091 et seq.
Creates civil penalties and reporting
requirements for elder abuse.
NV ST § 427A.310 et seq.
Creates a program for elder rights.
vi
Yes, attorney
general and private
citizens may
institute civil
actions against
nursing homes for
violation of
Missouri nursing
home omnibus act.
Yes, state agencies
may bring an action
against a nursing
home, although
only in limited
circumstances
involving
obstruction of
access to the long
term care.
Yes, allows state
agency to bring civil
action and impose
fines.
Yes, allows state
agency to impose
fines.
State
New
Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Statutes and
Regulations
Summary Requirements
NV ST § 200.5091
Creates civil penalties and reporting
requirements for elder abuse.
NV ST § 161-F:10 et seq.
Creates a long term care ombudsmen program.
NJ ST § 30:13-5
Provides standards for nursing home care, as
well as a nursing home residents’ bill of rights.
Also expressly provides a cause of action for
any resident whose rights are violated as
established by the law. If successful, the
resident is entitled to attorneys fees.
NJ ST § 52:27D-406 et
seq. “Adult Protective
Services Act.”
Creates civil penalties and reporting
requirements for elder abuse.
NJ ST § 52:27G-1 et seq.,
Creates ombudsmen program for the
institutionalized elderly.
NM ST § 27-7-14 et seq.,
“Adult Protective Services
Act”.
Criminalizes elder abuse.
NM ST § 28-17-1 et seq.
“Long-Term Care
Ombudsman Act”
Creates a long term care ombudsmen program.
NM ST § 30-47-1 et seq.
“Resident Abuse and
Neglect Act”.
Provides additional protections to nursing home
resident and authorizes attorney general to
institute private actions.
NY Pub. Health § 2801-d
et seq.
Allows for civil suits to be brought by third
parties for violations of New York’s nursing
home residents’ bills of rights. Allows plaintiffs
to assert bill of rights violations along with
common law negligence claims.
NY Penal § 260.31
Criminalizes elder abuse.
NY Elder 218
Creates a long term care ombudsman.
NC ST § 108A-99 through
108. “Protection of the
Abused, Neglected, or
Exploited Disabled Adult
Act.”
Creates civil penalties and reporting
requirements for elder abuse.
NC ST § 143B-181.15 et
seq.
Establishes a long –term care ombudsman
program.
ND ST § 50-10.1-01 et
seq.
Creates a long –term care ombudsman
program.
ND ST § 50-25.2-01 et
seq.
Creates standards for elder care and mandates
civil penalties for elder abuse.
vii
Authorizes
Agency Lawsuits
or Creates 3rd
Party Liability?
Yes, allows state
agency to impose
fines.
Yes, the law
authorizes private
and state action
against any violator
of the law.
Yes, authorizes
private citizens and
attorney general to
bring civil actions.
Yes, law provides
for third party
liability of nursing
homes for
violations of NY
nursing home bill of
rights.
Yes, allows state
agency to impose
fines.
Yes, allows state
agency to impose
fines.
State
Ohio
Statutes and
Regulations
OH ST. § 3721.13 et seq,
OH ST. § 3721.13 et seq,
Oklahoma
Oregon
Summary Requirements
Establishes powers and duties of a long –term
care ombudsman program.
Establishes standards of care for nursing home
and residents’ rights. Explicitly allows for civil
action to be brought by attorney general and by
private citizen for any violation of those rights.
OH ST § 5101.60
Provides additional protections for elderly
persons and civil penalties for elder abuse.
OK ST T. 21 § 843.1 et
seq.
Creates criminal and civil penalties for elder
abuse.
OK ST T. 63 § 1-1940 et
seq.
Declares that violations of nursing home
standards are a public nuisance and state may
initiate civil action.
Authorizes
Agency Lawsuits
or Creates 3rd
Party Liability?
Yes, nursing home
rights act allows
private citizens and
the state to sue
nursing home for
any violations.
Yes, state may
initiate civil action
and impose civil
penalties.
OR ST § 124.00 et seq.,
“Elderly Persons and
Persons With Disabilities
Abuse Prevention Act”
Creates a private cause of action for any person
or entity committing elder abuse, as defined by
the law.
OR ST § 441.402 et seq.,
Establishes a long term care ombudsman
program.
Pennsylvania
PA ST T 35 § 10225.101
et seq., “Older Adults
Protective Services Act.”
Creates additional protections for elderly and
civil penalties for elder abuse.
Yes, private and
state agency
actions are
authorized.
Rhode Island
RI ST § 12-29.1-1 et seq.
“Elderly Violence
Prevention Act.”
Establishes additional protections for elderly
persons from violence.
Yes, state agency
may impose civil
fines.
RI ST § 42-66-1 et seq.
Creates an Elderly Affairs Department and
tasks it without overseeing nursing home care.
SC ST § 43-35-5 et seq.,
“Omnibus Adult Protection
Act”.
Gives investigative and enforcement powers to
the ombudsman department created to protect
elderly adults.
SC ST § 43-38-10 et seq.
Authorizes long term care ombudsman program
to investigate and issue recommendations to
other agencies.
South Dakota
SD ST § 22-46-1 through
11.
Provides additional protections for elderly
persons and civil penalties for elder abuse.
No.
Tennessee
TN ST § 71-2-109
Creates an office of long-term care
ombudsman.
Yes, state may
initiate civil action
and impose civil
penalties.
South Carolina
TN ST § 71-6-101 et seq.,
viii
Yes, private and
state agency civil
actions are
authorized.
Yes, state agency
may impose civil
fines and make
referrals to other
agencies for followup action.
State
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Statutes and
Regulations
Summary Requirements
“Tennessee Adult
Protection Act.”
Provides additional protections for elderly
persons and civil penalties for elder abuse.
TX HUM RES § 48.001 et
seq.
Provides criminal and civil penalties for elder
abuse violations, including nursing home abuse.
TX. Health & Safety Code
§ 260A.001 et seq.
Creates reporting requirements for elder abuse.
UT ST § 62A-3-101 et
seq.
Creates investigation procedures for elder
abuse.
UT ST § 62A-3-201 et
seq.
Creates a long-term care ombudsman with
investigation powers.
UT ST § 62A-3-301et
seq., “Adult Protective
Services Program”
Provides additional protections for elderly
persons and civil penalties for elder abuse.
UT ST § 76-5-11
Criminalizes elder abuse and establishes
criminal penalties.
VT ST T. 13 § 1375 et
seq.
Criminalizes elder abuse.
VT ST T. 33 § 6901 et
seq.
Creates mandatory reporting requirements and
civil penalties for elder abuse.
VT ST T. 33 § 7502 et
seq.
Establishes a long-term care ombudsman with
powers to pursue judicial remedies on behalf of
individuals receiving long-term care.
VA ST § 51.5-117 et al.
Creates a department of aging and
rehabilitative services to assist elderly.
VA ST § 63.2-1603
Creates a system for adult protective services
and penalties for elder abuse.
WA ST § 43.190 et seq.
Establishes a long term care “ombuds” program
WA ST § 74.34.00 et seq.
“Washington's Vulnerable
Adult Statute”
Creates a private cause of action for any person
or entity committing elder abuse as defined by
the act. Allows family members of the elderly
adult to bring an action for damages as well
(Wash. Rev. Code. § 74.34.210).
WV ST § 9-6-1 et seq.
Provides adult protective services for elderly
adults, and creates specific standards for
nursing homes.
WV ST § 16-5L-1 et seq.,
“West Virginia Long-Term
Care Ombudsman
Program Act”
Establishes a long term care ombudsman
program.
ix
Authorizes
Agency Lawsuits
or Creates 3rd
Party Liability?
Yes, state may
initiate civil action
and impose civil
penalties.
Yes, state agency
may impose civil
fines and initiate
lawsuits on behalf
of individuals.
Yes, state agency
may impose civil
fines and initiate
lawsuits on behalf
of individuals.
Yes, allows state
agency to impose
civil fines.
Yes, allows state
and private citizens
to bring action.
Yes, arguably
authorizes both
state and private
actions.
State
Wisconsin
Wyoming
Statutes and
Regulations
Summary Requirements
WI ST § 16.009
Creates a long term care board to investigate
nursing home facilities.
WI ST § 46.90 et seq.
Establishes procedures for elderly abuse
investigations and mandatory reporting.
WI ST § 46.2895 et seq.
Allows counties to create long term care
districts that can establish penalties for
violations of long-term care standards.
WI ST § 50.10 et seq.
Regulates nursing home facilities and
specifically provides a cause of action for
private citizens to bring suits on behalf of
resident.
WY ST § 9-2-1301 et seq.
““Long Term Care
Ombudsman Act”
Creates long term care ombudsman program to
investigate nursing home abuse.
WY ST § 35-20-101 et. al
“Adult Protective Services
Act.”
Criminalizes elder abuse, creates mandatory
reporting and establishes service providers for
elderly adults.
x
Authorizes
Agency Lawsuits
or Creates 3rd
Party Liability?
Yes, the law
creates nursing
home standards
and provides a
cause of action for
state agency and
private parties.
No.
II. 50 State Summary of Damage Caps
State
Alabama
Damage Caps - Medical Malpractice
None.
Limits on noneconomic damages (§6-5-547)
declared unconstitutional by state Supreme
Court (see Mobile Infirmary Medical Center v.
Hodgen, 884 So.2d (Ala. 2003).
Alaska
Yes: $250,000 cap on non-economic damages
for claim arising out of single injury, regardless of
number of health care providers. Limit of
$400,000 when damages are awarded for
wrongful death or severe permanent physical
impairment that is more than 70 percent
disabling. (AS §09.55.549). However, limit does
not apply if reckless or intentional misconduct
(hence punitive damages.) GENERAL damages
caps (AS §09.17.010) that apply to all personal
injury or wrongful death actions limit noneconomic damages to $400,000 or the injured
person’s life expectancy times $8,000, whichever
is greater. However, limits increases to
$1,000,000 or the person’s life expectancy times
$25,000, whichever is greater, when there is
severe permanent physical impairment or severe
disfigurement.
Unclear - there are no decisions in which a nursing
home claim was brought under the Medical Act.
However, in South Central Health Planning &
Development Inc. v. Commissioner of Dept. of
Admin, 628 P.2d 551 (Alaska 1981), the Supreme
Court held that a skilled nursing facility was a
“health care facility” as defined by statute, and
hence required a Certificate of Need prior to
construction. This, combined with the broad
language of the Medical Malpractice definitions
section (AS § 09.55.560) implies that nursing
homes should come within the medical
malpractice limits. Damage cap with be either
medical malpractice noneconomic limit of
$250,000 or general limit of $400,000 / $8,000 x
life expectancy or $1,000,000 / $25,000 x life
expectancy if severe permanent physical
impairment or severe disfigurement. AS
§09.55.549; AS §09.17.010
Arizona
None
None.
Arkansas
None
None.
California
Yes: $250,000 limited for noneconomic
damages, regardless of the number of claims.
Cal.Civ. Code §3333.2 Cap was enacted as part
of the Medical Injury Compensation Reform Act
(MICRA), and does not apply to residential
nursing care facilities.
Long term care facilities are governed by the
Long-Term Care, Health, Safety and Security Act
of 1973. West’s Ann.Cal.Health & Safety Code
§1417 et. seq. There are no damage caps. Civil
action may be brought against Licensee, for up to
$500 for each violation, with costs and attorneys
fees. West’s Ann.Cal.Health& Safety Code
§1430. Actions are also brought for violation of
Elder Abuse statute.
Colorado
Yes: Healthcare Availability Act limits non
economic damages to $300,000 and economic
damages to $1,000,000 (though cap can be
exceeded for "good cause shown") CRSA §1364-302.
“General” noneconomic damages are capped at
$250,000, unless the Court finds justification, by
clear and convincing evidence, but in no event
may non-economic damages exceed $500,000.
CRSA §13-21-102.5
Connecticut
None
None
Delaware
None. (Note health care medical negligence
litigation is regulated under 18 Del.C.§6801, et.
seq.)
None. (Note nursing facilities are regulated in 16
Del.C. § 1101, et. seq.)-
District of
Columbia
None.
None.
xi
Damage Caps - Long Term Care
None
State
Florida
Damage Caps - Medical Malpractice
Status questionable: Noneconomic damages
were limited in FSA §766.11 to $500,000 per
claimant and/or practitioner, $750,000 in the
event the defendant is a facility rather than an
individual practitioner. In the case of death or
permanent vegetative state, the noneconomic
damages were doubled to $1,000,000 or
$1,500,000. However, in Estate of McCall v.
United States, 134 So.3d 894 (Fla. 2014), the
Florida Supreme Court held that the statutory
cap on wrongful death non-economic damages in
cases involving several claimants was
unconstitutional, as it violated the equal
protection clause of the state constitution. In
North Broward v. Kalitan, 2015 WL 3973075 (4th
DCA 7/1/2015), the Fourth District Court
expanded upon this ruling, and held that
noneconomic damage caps in personal injury
actions were unconstitutional, and violated the
Equal Protection Clause.
Georgia
None. Prior caps which were set forth in
Ga.Code.Ann.§ 51-13-1 were found
unconstitutional in Atlanta Oculoplastic Surgery,
PC v. Nestlehutt, 691 S.E.2d 218 (Ga. 2010)
None. Prior caps which were set forth in
Ga.Code.Ann.§ 51-13-1 were found
unconstitutional in Atlanta Oculoplastic Surgery,
PC v. Nestlehutt, 691 S.E.2d 218 (Ga. 2010)
Hawaii
Yes. The recovery for "pain and suffering"
(defined as the actual physical pain and suffering
that is the proximate result of a physical injury
sustained by a person) in ALL TORT ACTIONS
is capped at a maximum of $375,000. (HI
Revised Statutes, Section 663-8.5) However,
this does not apply to: Intentional torts, torts
relating to environmental pollution, toxic and
asbestos-related torts, torts relating to aircraft
accidents, strict and product liability torts or torts
relating motor vehicle accidents, with specified
exceptions. HRS § 663-10.9
Yes. The recovery for "pain and suffering"
(defined as the actual physical pain and suffering
that is the proximate result of a physical injury
sustained by a person) in ALL TORT ACTIONS is
capped at a maximum of $375,000. (HI Revised
Statutes, Section 663-8.5) However, this does not
apply to: Intentional torts, torts relating to
environmental pollution, toxic and asbestosrelated torts, torts relating to aircraft accidents,
strict and product liability torts or torts relating
motor vehicle accidents, with specified exceptions.
HRS § 663-10.9
Idaho
Yes: Non-economic damages in all actions for
personal injuries are capped at $250,000 (this
figure is adjusted each year for inflation
beginning 7/1/2004). I.C. §6-1603. The cap
does not apply if the cause of action arises out of
willful or reckless conduct or acts which would
constitute a felony. I.C. § 6-1603.
Yes: Non-economic damages in all actions for
personal injuries are capped at $250,000 (this
figure is adjusted each year for inflation beginning
7/1/2004). I.C. §6-1603. The cap does not apply
if the cause of action arises out of willful or
reckless conduct or acts which would constitute a
felony. I.C. § 6-1603.
Illinois
No; IL Supreme Court found caps on damages
violates the constitutional principle of separation
of powers by interfering with the authority of the
judicial branch to reduce verdicts.
LeBron v. Gottlieb Memorial Hospital, (Ill.
February 4, 2010).
None
xii
Damage Caps - Long Term Care
None.
State
Indiana
Damage Caps - Medical Malpractice
Yes: $250,000.00 per qualified health care
provider per act of malpractice causing injury.T
otal amount recoverable for injury/death of
patient may not exceed $1,250,000. Amount due
from judgment in excess of total liability of
qualified health care providers is paid from
patient’s compensation fund. IC 34-18-14-3
Iowa
None
None.
Kansas
Yes: Wrongful Death Cap: $250,000 plus the
pecuniary loss sustained by the heir at law. KSA
60-1903. Personal injury action cap: $300,000
Non Economic Damage Cap (until 7/1/18increases to $325,000, then 7/1/22 – increases
to $350,000) – limit applies to each party’s
recovery for noneconomic damages from all
defendants. KSA 60-19a02. There is No
vicarious liability for any qualified healthcare
provider who has coverage with the KS
Healthcare Stabilization Fund
Yes: Wrongful Death Cap: $250,000 plus the
pecuniary loss sustained by the heir at law. KSA
60-1903. Personal injury action cap: $300,000
Non Economic Damage Cap (until 7/1/18increases to $325,000, then 7/1/22 – increases to
$350,000) – limit applies to each party’s recovery
for noneconomic damages from all defendants.
KSA 60-19a02.
Kentucky
No
No.
Louisiana
Yes: Healthcare Provider cap is $100,000 and
Louisiana Patient Compensation Fund Cap is
$400,000 for total damage cap of $500,000 in
medical malpractice cases for "qualified
providers" (those that have paid a surcharge to
the PCF). Held constitutional in Oliver v.
Magnolia Clinic, 85 So.3d 39 (La. 2012).
Issue revolves around whether alleged negligence
requires expect testimony relating to standard of
care: if expert testimony is required, action falls
within ambit of Medical Malpractice Act (MMA),
and all requirements (expert review, panel, etc)
apply. If not, the claim falls under the Nursing
Home Residents Bill of Rights (NHRBR) (LSAR.S. 40:2010.1 et. seq.) which has no damage
caps.
Maine
Yes: In wrongful death cases: $500,000 cap on
loss of consortium, limit on punitive damages of
$250,000. 18-A MRSA §2-804
Yes: In wrongful death cases: $500,000 cap on
loss of consortium, limit on punitive damages of
$250,000. 18-A MRSA §2-804
Maryland
Yes: Medical Malpractice Noneconomic
Damages Cap 3-2A-09, Cts. & Jud. Proc. Art.,
Md. Ann. Code. may not exceed $650,000 for
cause of action arising between 1/1/05 and
12/31/08. Limitation increases by $15,000 each
year beginning with 1/1/09. Applies to personal
injury and wrongful death from the same medical
injury. In wrongful death with two or more
beneficiaries, total amount of noneconomic
damages awarded may not exceed 125% of the
limit. Other personal injury or wrongful death
noneconomic damages are regulated under MD
§11-108
Actions against a nursing home constitute medical
malpractice actions (see, ie. Dickerson v.
Longoria, 995 A.2d 721 (Md.App. 2010); hence,
the same caps apply.
Massachusetts
Yes: $500,000 limit for noneconomic damages,
unless there is substantial or permanent loss or
impairment of bodily function or substantial
disfigurement, or other special circumstances
that warrant additional compensation. MGLA
231 § 60H Statute does not apply in wrongful
death scenarios.
Yes. A nursing home is defined as a provider of
health care under MGLA 231 § 60B; hence, there
is a $500,000 limit for noneconomic damages,
unless there is substantial or permanent loss or
impairment of bodily function or substantial
disfigurement, or other special circumstances that
warrant additional compensation. MGLA 231 §
60H Statute does not apply in wrongful death
scenarios.
xiii
Damage Caps - Long Term Care
None
State
Michigan
Damage Caps - Medical Malpractice
Yes: Michigan has imposed a two tier cap on
noneconomic damages on the total amount
recoverable from all plaintiffs. MCLA 600.1483.
The upper tier cap is available only where there
is permanent loss of reproductive capacity;
hemiplegia, paraplegia or quadriplegia; or brain
injury causing permanent impairment to the
cognitive capacity. Death is not an exception to
the lower tier cap; if the plaintiff suffered a
qualifying injury prior to death, the upper tier cap
is available. The statutory caps are adjusted
annually according to the consumer price index.
In 2015, the lower tier cap is $444,900, and the
upper tier cap is $794,500 for causes of action
arising after September 30, 1993. For causes of
action arising before October 1, 1993, the lower
tier cap is $225,000 and the upper tier cap is
$467,300. The trial court determines which cap
applies after the jury renders its verdict. Any
settlement received from other tortfeasors is
subtracted from the verdict before it is reduced to
the cap.
Damage Caps - Long Term Care
If the Nursing home and patient enter into
professional relationship to render professional
services which is breached, it supports a claim for
medical malpractice. Bryant v. Oakpoint Villa
Nursing Center, 684 N.W.2d 864 (2004) (patient
death caused by positional asphyxia, due to
negligent nursing care). In this case, malpractice
caps apply. If the action is for ordinary
negligence, no caps apply.
Minnesota
Minnesota does not cap damages in medical
malpractice cases. While there is generally no
cap on damages in Minnesota, compensatory
damage awards are limited if the claim is against
a municipality. Under M.S A § 466.04, the tort
liability of a municipality is not to exceed
$1,000,000 for all claimants arising out of one
incident.
None.
Mississippi
Yes. Medical malpractice claims have a noneconomic damage cap of $500,000. Miss. Code
Ann. § 11-1-60. There are no limits to economic
damages (past, present or future medicals, lost
wages, etc). Note that Miss. Code Ann. § 11-160 was held unconstitutional by a Mississippi
intermediate court in Tanner v. Eagle Oil & Gas
Co., 2012 WL 7748580 (Miss.Cir. 1st Dist. 2012)
Yes: Missouri’s most recent tort reform package
was enacted in 2005. Included in these tort
reform measures was a cap on non-economic
damages in medical negligence cases. The cap
is $350,000 for non-economic damages per
case, irrespective of the number of defendants,
plaintiffs, or occurrences of negligence. There is
no adjustment of the cap based on inflation or
other economic factors. However, new Missouri
noneconomic damage caps are to be effective on
August 28, 2015 due to a bill signed by Missouri
Governor Jay Nixon. Noneconomic damages,
such as pain and suffering, would be capped at
$400,000 in most medical personal injury cases.
Measurable economic damages, such as
medical costs resulting from the injury and lost
wages, would not be subject to the limits.
HEALTH CARE PROVIDERS—STATUTORY
CAUSE OF ACTION, 2015 Mo. Legis. Serv. S.B.
239 (VERNON'S) (West's No. 71). For
None.
Missouri
xiv
Yes. See medical malpractice damage caps.
State
Damage Caps - Medical Malpractice
"catastrophic" cases defined in the bill, including
paralysis, loss of vision and brain injury, the cap
would be $700,000. The bill also doubles the
existing cap in wrongful death cases from
$350,000 to $700,000. Id.
Damage Caps - Long Term Care
Montana
Yes. In a malpractice claim or claims against
one or more health care providers based on a
single incident of malpractice, an award for past
and future damages for noneconomic loss may
not exceed $250,000. (MCA 25-9-411).
None
Nebraska
Yes. Pursuant to the Nebraska Hospital Liability
Act, the damage cap is $2,250,000 for those
providers qualified under the Act. There is no
damage cap for those that are not qualified.
(Note – amount of cap depends upon date of
occurrence). Neb.Rev.St. § 44-2825. Each
health care provider is responsible for up to
$500,000 of that judgment; the remainder is paid
by the “excess liability fund” created under the
Nebraska Hospital-Medical Liability Act, and
funded by fees paid by participating providers.
Neb.Rev.St. § 44-2829 et. seq.
Nebraska Nursing homes are regulated under
Neb.Rev.St. § 71-6008 et. seq. There are no
damage caps.
Nevada
Yes: $350,000 limit on noneconomic damages
regardless of number of plaintiffs, defendants or
theories of liability. NRS 41A.035 Nevada also
has a $50,000 limit on civil damages for care or
assistance for traumatic injury demanding
immediate medical attention, INCLUDING care
rendered at an ER or trauma center, unless
grossly negligent. However, limitation ceases
upon patient stabilization. NRS 41.503.
Additional rule on non-liability relating to
provision of emergency obstetrical care. NRS
41.506
None in medical malpractice actions - Limits
declared unconstitutional by State Supreme
Court.
None. Note - nursing homes are regulated under
Chapter 151 of the New Hampshire Revised
Statutes.
No non-economic damages caps.
No non-economic damages caps.
New
Hampshire
New Jersey
xv
State
New Mexico
Damage Caps - Medical Malpractice
Yes: In medical malpractice actions against a
qualified health care provider tried before a jury,
a $600,000 limit ($500,000 for incidents prior to
April 1, 1995) applies to all damages, with the
exception of punitive damages and damages for
medical expenses. N.M. Stat. Ann. § 41-5-6
(Michie 1996). (See Patient Compensation
Funds and Physician Insurance for a further
limitation on the liability of qualified health care
providers.) The $600,000 limit on damages does
not include future medical expenses, which are
not covered by monetary damages. If the jury
finds that a plaintiff requires future medical care,
the expense of that care must be paid as
incurred. N.M. Stat. Ann. § 41-5-7 (Michie 1989
& Supp. 1997). Health care providers are not
liable individually for any amount over $200,000;
any judgment in excess paid from Patient's
Compensation Fund.
New York
None. There are no damage caps in New York.
Any party may challenge at the trial court level
and on appeal, a damages award or lack thereof
that “deviates materially from what would be
reasonable compensation.” No significant efforts
to push for med mal reform on the state level in
New York.
None.
North Carolina
Yes but seriously limited: $500,000 cap on noneconomic damages against all defendants; cap
increases yearly by Consumer Price Index factor;
however, NO LIMIT if plaintiff suffered
“disfigurement, loss of use of part of the body,
permanent injury or death” or if defendant
conduct was grossly negligent or intentional.
NCGSA §90-21.19. Malpractice verdicts must
specify amount of non-economic damages.
NCGSA §90-21.19B
Nursing homes are considered “health care
providers” within the scope of the provisions
governing medical malpractice actions. NCGSA
§90-21.11 Hence, see medical malpractice caps.
xvi
Damage Caps - Long Term Care
None.
State
North Dakota
Damage Caps - Medical Malpractice
Yes - With respect to a health care malpractice
action or claim, the total amount of compensation
that may be awarded to a claimant or members
of the claimant's family for noneconomic damage
resulting from an injury alleged under the action
or claim may not exceed $500,000, regardless of
the number of health care providers and other
defendants against whom the action or claim is
brought or the number of actions or claims
brought with respect to the injury. With respect to
actions heard by a jury, the jury may not be
informed of the limitation contained in this
section. If necessary, the court shall reduce the
damages awarded by a jury to comply with the
limitation in this section. NDCC 32-42-02
Damage Caps - Long Term Care
Yes - With respect to a health care malpractice
action or claim, the total amount of compensation
that may be awarded to a claimant or members of
the claimant's family for noneconomic damage
resulting from an injury alleged under the action or
claim may not exceed $500,000, regardless of the
number of health care providers and other
defendants against whom the action or claim is
brought or the number of actions or claims brought
with respect to the injury. With respect to actions
heard by a jury, the jury may not be informed of
the limitation contained in this section. If
necessary, the court shall reduce the damages
awarded by a jury to comply with the limitation in
this section. NDCC 32-42-02
NOTE: the North Dakota Medical Malpractice
Ins.Co. is created under NDCC 26.1-14-01
et.seq.. Any healthcare provider insured by the
company with $500,000/$1,000,000 limits is
immune from liability in excess of those limits.
NDCC 26.1-14-11.
Ohio
Yes: There is a cap on non-economic damages
for claims arising out of acts or omissions on or
after April 11, 2003. The basic cap is the larger of
$250,000 or three times economic damages,
subject to a maximum of $350,000 per plaintiff
and a maximum of $500,000 per occurrence.
These maximum amounts increase to $500,000
per plaintiff and $1 million per occurrence if the
plaintiff has suffered permanent and substantial
physical deformity, loss of use of a limb, loss of a
bodily organ system, or permanent physical
injury that prevents self-care. The cap does not
apply to cases brought under the wrongful death
statute, but it does limit recovery by a decedent's
estate for such non-economic damages as
conscious pain and suffering experienced prior to
death.
No. However, upon post-trial motion, the Court
can review an award of non-economic damages
alleged to be excessive. ORC 2315.19.
Oklahoma
Yes. For actions filed after 11/1/2011,
Noneconomic damages are limited to $350,000
regardless of the number of defendants, unless
the defendant was reckless; grossly negligent;
acted fraudulently or acted intentionally with
malice, in which case there is no limitation. 23
Ok.St.Ann § 61.2
Yes. For actions filed after 11/1/2011,
Noneconomic damages are limited to $350,000
regardless of the number of defendants, unless
the defendant was reckless; grossly negligent;
acted fraudulently or acted intentionally with
malice, in which case there is no limitation. 23
Ok.St.Ann § 61.2
xvii
State
Oregon
Damage Caps - Medical Malpractice
No: ORS §31.710 provides a $500,000 cap on
non-economic damages in all cases. However,
in Lakin v. Senco Products Inc., 329 Or. 62, 67,
987 P.2d 463 (1999), the Oregon Supreme Court
held that ORS 18.560(1) [subsequently to
become ORS 31.710], the statutory cap on
noneconomic damages, when applied to a
common law negligence action, violates Article I,
section 17, of the Oregon Constitution. The
statute was declared constitutional in Hughes v.
PeaceHealth, 344 Or 142, 178 P3d 225 (2008)
for wrongful death cases, because there was no
common law right of action for wrongful death at
the time the Oregon State Constitution was
promulgated.
Damage Caps - Long Term Care
No: ORS §31.710 provides a $500,000 cap on
non-economic damages in all cases. However, in
Lakin v. Senco Products Inc., 329 Or. 62, 67, 987
P.2d 463 (1999), the Oregon Supreme Court held
that ORS 18.560(1) [subsequently to become
ORS 31.710], the statutory cap on noneconomic
damages, when applied to a common law
negligence action, violates Article I, section 17, of
the Oregon Constitution. The statute was
declared constitutional in Hughes v. PeaceHealth,
344 Or 142, 178 P3d 225 (2008) for wrongful
death cases, because there was no common law
right of action for wrongful death at the time the
Oregon State Constitution was promulgated.
Pennsylvania
None; there are no limits on damages and no
bills for Tort Reform currently pending.
None. Note actions against a deceased
defendant are limited to actual damages only; no
punitive or noneconomic damages are allowed.
RI ST §9-1-8
None.
South Carolina
Yes: $350,000 stacked cap on non-economic
damages for each healthcare provider. Total
award for non-economic damages can not
exceed $1,050,000. See SC Code 15-32-220.
Yes: SC Code 15-32-210 defines a health care
institution to include a nursing home. Limit of
$350,000 stacked cap on non-economic damages
for each healthcare provider. Total award for noneconomic damages cannot exceed $1,050,000.
See SC Code 15-32-220.
South Dakota
Yes: $500,000 limit on noneconomic damages
per SDCL §21-3-11. However, there is no limit
on special damages that may be awarded.
None.
Tennessee
Yes. Effective 6/12/12, in all civil actions, non
economic damages are capped at $750,000,
Economic damages are capped at $500,000, and
Catastrophic losses or injuries are capped at
$1,000,000. Catastrophic injuries are defined as
paralysis, amputation of one of each hands or
feet or both, 3rd degree burns over 40% of the
body, or wrongful death of a parent leaving a
minor dependent child. TCA §29-39-102
Yes. Effective 6/12/12, in all civil actions, non
economic damages are capped at $750,000,
Economic damages are capped at $500,000, and
Catastrophic losses or injuries are capped at
$1,000,000. Catastrophic injuries are defined as
paralysis, amputation of one of each hands or feet
or both, 3rd degree burns over 40% of the body, or
wrongful death of a parent leaving a minor
dependent child. TCA §29-39-102
Rhode Island
xviii
None.
State
Texas
Damage Caps - Medical Malpractice
Yes, in medical negligence claims; Chapter 74 of
the Texas Civil Practice & Remedies Code limits
damages through its statutory damages caps.
Under §74.301 of the Texas Civil Practice &
Remedies Code: in an action against one or
more healthcare providers other than a
healthcare institution, a claimant’s noneconomic
damages are capped at $250,000; in an action
against a single healthcare institution,
noneconomic damages are capped at $250,000;
in an action against more than one healthcare
institutions, noneconomic damages are capped
at $500,000; in an action against one or more
healthcare providers other than a healthcare
institution and one healthcare institution, a
claimant’s noneconomic damages are capped at
$500,000; and in an action against multiple
healthcare providers, including more than one
healthcare institution and one or more healthcare
providers other than a healthcare institution,
noneconomic damages are capped at $750,000.
Claims for medical expenses and funeral and
burial expenses are not capped. Additionally, in
a wrongful death or survival claim, the limit on all
damages, including exemplary damages, is
limited to $500,000, adjusted for the change in
the consumer price index since August 23, 1977.
See Texas Civil Practice and Remedies Code
§74.303. However, §74.303’s cap does not
apply to the amount of damages awarded for
necessary medical expenses. Therefore,
applying both caps indicates noneconomic
damages would be capped at $250,000, but the
total of all damages (including exemplary), other
than damages awarded for medical expenses, is
approximately $1.8 million.
Damage Caps - Long Term Care
Per The Texas Civil Practices & Remedies Code
§74.001, a nursing home is considered to be a
“health care institution” under the Medical Liability
Act. The caps applicable to medical malpractice
damages are hence applicable to nursing homes.
Utah
UCA §78B-3-410 - Damage caps in medical
malpractice actions in the amount of $450,000,
exclusive of punitive damages. Held
unconstitutional by Utah Supreme Court in a
wrongful death action per Smith v. U.S., 2015
WL 4742499 8/11/2015).
Per UCA §78B-3-403, a nursing care facility is
defined as a health care facility for purposes of the
Utah Health Care Malpractice Act. The same
caps apply – but as noted, caps were held
unconstitutional.
Vermont
No specific caps applicable. However, per 12
VSA §5601, maximum liability of State is
$500,000 to any one person, and $2,000,000 to
all persons arising out of each occurrence.
However, this limit does not apply if liability
insurance has been purchased by the State.
Virginia
Yes: per VA Code Ann.§ 8.01-581.15, limit for
verdicts rendered from 7/1/15 to 6/30/16 is $2.20
million (increases yearly).
Washington
No damage caps; Sofie v Fibreboard Corp., 112
Wn. 2d 636, 771 P.2d 260 (1989) declared
Washington’s damage caps unconstitutional.
xix
None
Yes. Per VA Code Ann. § 8.01-581.1, “health
care” is specifically defined to include professional
services in nursing homes. The medical
malpractice caps are applicable in long term care
scenarios.
State
West Virginia
Damage Caps - Medical Malpractice
Yes: The MPLA limits non-economic loss to
$250,000 per occurrence, regardless of the
number of plaintiffs and defendants. W.Va. Code
§ 55-7B-8 (2003) Non-economic losses “include
but are not limited to pain, suffering, mental
anguish and grief.” Plaintiff may recover
compensatory damages for non-economic loss in
excess of the limitation above, but not in excess
of $500,000 for each occurrence, where the
damages for non-economic losses suffered by
the plaintiff were for: (1) wrongful death; (2)
permanent and substantial physical deformity,
loss of use of a limb or loss of a bodily organ
system; or (3) permanent physical or mental
functional injury but permanently prevents the
injured person from being able independently
care for himself or herself and perform life
sustaining activities. W.Va. Code § 55-7B-8(b).
West Virginia also has separate statutory cap on
the amount of damages recoverable in a medical
malpractice suit. See W.Va. Code 55-7B-7a and
55-7B-9d for details.
Damage Caps - Long Term Care
Yes. W.Va. Code § 55-7B-2, the definitions
section of the MPLA, specifically includes nursing
homes. Hence, the same damages caps apply in
LTC as in MedMal.
Wisconsin
Yes: $750,000 noneconomic damage cap for
each occurrence on or after 4/6/06; except for
cases involving wrongful death. W.S.A. §893.55.
Judgment for damages for pecuniary injury from
wrongful death may be awarded to any person
entitled to bring a wrongful death action.
Additional damages not to exceed $500,000 per
occurrence in the case of a deceased minor, or
$350,000 per occurrence in the case of a
deceased adult, for loss of society and
companionship may be awarded to the spouse,
children or parents of the deceased, or to the
siblings of the deceased, if the siblings were
minors at the time of the death. Wis. Stat. 895.04
(4). WI Patients Compensation Fund serves as
excess insurer when a judgment exceeds the
minimum mandatory liability insurance required
to be carried by physicians ($1M/$3M) Wis. Stat.
§ 655.23(4).
The total noneconomic damages recoverable for
bodily injury arising from care or treatment
performed, or from any omission, by a long-term
care provider, including any action or proceeding
based on contribution or indemnification and any
action for a claim by a person other than the
injured person for noneconomic damages
recoverable for bodily injury, may not exceed the
limit under s. 893.55 (4) (d) ($750,000) for each
occurrence on or after February 1, 2011, from all
long-term care providers and all employees of
long-term care providers acting within the scope of
their employment and providing long-term care
services who are found negligent. (Wis. Stat
893.555(4))
Wyoming
No. However, liability of governmental entities,
public hospitals, and their employees limited to
the amount of insurance coverage which is
capped on Wyoming Governmental Claims Act.
Can have specific insurance policy in place and a
typical policy would be $1mil/$5mil. Per WS
1977 §1-39-110, liability shall not exceed
$1,000,000 per occurrence, regardless of
number of claimants.
None.
xx
III. State Compensation Funds
Florida
The Florida Legislature established the Florida Birth-Related Neurological Injury Compensation Plan (“NICP”)
in 1998 to provide compensation, on a no-fault basis, for a limited class of catastrophic, birth-related neurological
injuries that result in unusually high costs for custodial care and rehabilitation.1 The NICP is administered by the
Florida Birth-Related Neurological Injury Compensation Association (“NICA”).2 The NICP is available to eligible
families statewide without litigation. By eliminating costly legal proceedings, and through professional
management of its disbursements, NICA ensures that birth-injured infants receive the care they need while
reducing the financial burden on medical providers and families.
Individuals interested in pursuing a claim under the NICP must submit a claim by the child’s fifth birthday.3 The
claim is then reviewed by an administrative law judge to determine whether the injury claimed is a birth-related
neurological injury.4 By becoming a participating physician, a physician shall be bound for all purposes by the
finding of the administrative law judge or any appeal therefrom with respect to whether such injury is a birthrelated neurological injury.5 If it is determined that a child has sustained a birth-related neurological injury and
the obstetrical services were delivered by a participating physician at birth, the administrative law judge can
make an award compensating the relative for actual medical and hospital expenses, expenses associated with
rehabilitation/therapy/training, family or professional residential or custodial care, medication, special equipment
and facilities and related travel expenses.6
The rights and remedies granted by NICP exclude all other rights and remedies of such infant, her or his
personal representative, parents, dependents, and next of kin, at common law or otherwise, against any person
or entity directly involved with the labor, delivery, or immediate post-delivery resuscitation during which such
injury occurs, arising out of or related to a medical negligence claim with respect to such injury.7 The statute,
however, allows for civil claims where there is clear and convincing evidence of bad faith or malicious purpose
or willful and wanton disregard of human rights, safety, or property, provided that such suit is filed prior to and
in lieu of payment of an award under NICP.8
Indiana
In 1975, Indiana enacted the Indiana Medical Practice Act that established a Patient Compensation Fund.9 The
Patient Compensation Fund covers a wide range of practitioners and institutions, including physicians, nurses,
emergency medical technicians, optometrists, hospitals, HMOs, ambulance services, home health agencies,
and mental health and retardation services. The Patient Compensation Fund functions as a system of excess
insurance for health care providers. To become a “qualified provider,” entitled to the benefits of the Act, a health
care provider must file proof of financial responsibility and pay the surcharge assessed by the Commissioner of
Insurance to support the Fund.10 The surcharge varies between types of participants and specialties.
A qualified provider establishes financial responsibility by purchasing malpractice liability insurance. Effective
July 1, 1999, required limits for physicians are $250,000 per occurrence and $750,000 in the annual aggregate,
while required limits for hospitals are $250,000 per occurrence and $5,000,000 in the annual aggregate, if the
hospital has not more than one hundred beds, or $7,500,000 in the annual aggregate, if the hospital has more
than one hundred beds. (Other aggregate limits are prescribed for other health care entities.)11 The limits
required as of July 1, 1999, are two and one-half times the previous limits. Hospitals may qualify with a selfinsurance plan at the discretion of the Commissioner.12 The maximum liability of a qualified provider for an
xxi
occurrence is limited to the amount of required insurance. The Patient Compensation Fund is liable for the
excess over what is owed by all the qualified providers, up to an overall damage cap – currently set at
$1,250,000.13 Attorney fees in the prosecution of a claim are also limited to fifteen percent (15%) of any award
made from the Fund. The Fund also covers amounts in excess of the required aggregates and amounts owed
by insurers that fail to pay.14 Although participation in the system is voluntary, virtually all physicians participate
in the system because caps on liability are limited to participants.
Kansas
The 1976 Health Care Providers Insurance Availability Act (“HCPIAA”) created the Health Care Stabilization
Fund in an effort to stabilize the availability of medical professional liability coverage for health care providers.15
The law mandates a basic liability requirement for certain health care providers – currently $200,000 per claim,
subject to a $600,000 annual aggregate - and establishes an availability plan in order to provide required basic
professional liability insurance coverage for those providers of health care in Kansas unable to obtain such
coverage from the commercial market.16 The Fund receives its funding from professional liability coverage
surcharge payments made by health care providers. The Fund covers a wide range of practitioners and
institutions, including physicians, chiropractors, nurses, podiatrists, dentists, medical care facilities, and mental
health clinics and centers.
The Fund is administered by a 10-member board. The primary function of the Fund is to provide excess
professional liability coverage above the basic professional liability coverage. K.S.A. 40-3403.17 Three different
fund excess coverage levels are available to health care providers: $100,000/$300,000; $300,000/$900,000; or
$800,000/$2,400,000.18 Typically, the Fund’s coverage is “triggered” when the basic professional liability
insurer’s projected loss exposure exceeds $200,000. Unlike some states, the liability of participating members
in the Fund is not capped and the member decides whether to purchase coverage beyond the fund coverage
limits.
Louisiana
During the 1975 legislative session, the Louisiana Legislature passed La. R.S. 40:1231.1 et seq. creating the
Louisiana Patient’s Compensation Fund (“PCF”). The Act was created to provide coverage to private healthcare
providers in Louisiana, ensuring that a stable and affordable market existed for malpractice insurance to keep
practitioners in the state. In addition, the Act sought to create a viable fund for compensating claimants.
The Act provides that claims against “Qualified Healthcare Providers” are capped at $500,000, plus past and
future medical expenses.19 This $500,000 cap applies not only to all non-economic damages like pain and
suffering but also to claims for lost wages. The definition of “Qualified Healthcare Provider” is very broad to
include virtually every type of individual or entity providing healthcare to people. To be considered as a “Qualified
Healthcare Provider” in the private sector, that provider generally needs to make premium payments into the
Louisiana Patient's Compensation Fund.20 If a healthcare provider chooses not to participate by paying such
premiums, then that healthcare provider does not receive the benefits of the medical malpractice act, including
the cap on damages. In other words, there would be no cap against that healthcare provider’s claims. The PCF
is governed by the Patient’s Compensation Fund Oversight Board.21 Healthcare providers who choose to enroll
in the PCF remain responsible for the first $100,000 of each claim.22 The PCF provides coverage for the second
layer of $400,000 plus all related medical expenses.23 Virtually all Louisiana physicians participate in the Fund.
Nebraska
xxii
Nebraska enacted the Nebraska Hospital-Medical Liability Act in 1976. The Act addresses only those
professional liability issues associated with physicians, nurse anesthetists, and certain medical facilities,
including hospitals. The Act, in part, created an Excess Liability Fund.24 In order to be covered by the Fund, the
participants must obtain a $500,000/$1,000,000 basic professional liability policy from an insurance company
qualified in Nebraska, send proof of coverage to the Department of Insurance, pay an annual surcharge to the
Fund – which may not exceed 50% of the premium for basic liability insurance coverage – and display in a
suitable location an approved notice that the participant has elected to be included under the act.25 In the case
of hospitals and their employees, the statute requires an aggregate liability amount of $3 million for all claims.26
As long as the participant remains qualified under the Fund, and unless the patient has elected not to be
governed by the Act, the participant’s liability is limited to $500,000 per claim.27 The total patient award,
however, may not exceed $2,250,000 for any occurrence taking place after December 31, 2014.28 Any amount
due from a judgment or settlement which is in excess of the total liability of all liable health care providers is
paid from the Excess Liability Fund.
New Mexico
The New Mexico Patient Compensation Fund (“PCF”) was established in 1978 by the New Mexico Medical
Malpractice Act.29 The purpose of the PCF is to promote the availability of coverage for medical professional
liability to health care providers practicing in New Mexico.
The PCF is funded solely through the surcharges paid by its participants and is administrated by the
Superintendent of Insurance.30 Doctors of medicine, Doctors of Osteopathy, Chiropractors, Podiatrists, Nurse
Anesthetists, Physicians' Assistants, Hospitals, and Outpatient Healthcare Facilities can participate in the Fund.
Most health care providers participating in the PCF meet the financial responsibility requirements of the Act by
purchasing medical malpractice insurance policies written on occurrence policy forms at $200,000 per claim
from PCF authorized insurers.31 For hospitals and outpatient health care facilities, the amount of coverage is
decided by the Superintendent of Insurance based on a risk assessment for each hospital or outpatient facility.32
These insurers collect the primary layer of premium and the PCF surcharge from the health care provider and
remit it to the PCF.33
The PCF provides an excess layer of coverage to doctors, hospitals, and other health care providers who qualify
under the provisions of the Medical Malpractice Act. The PCF provides limitations on monetary awards, time
limits for filing claims, and mandatory panel review of claims. In this regard, and except for punitive damages
and medical care and related benefits, the aggregate dollar amount recoverable by all persons arising from an
injury or death to a patient as a result of malpractice shall not exceed $600,000.34 Payment of accrued medical
care and related benefits and future medical expenses are not subject to the limit. Instead, those amounts are
paid by the Fund. A healthcare provider not qualifying under the statute is not entitled to the benefit of any of
the provisions of the Medical Malpractice Act.
New York
New York continues to have the highest medical malpractice costs of any state in the country. Recognizing this,
the New York Legislature created the New York State Medical Indemnity Fund in 2011.35 The New York Medical
Indemnity Fund provides a funding source for future health care costs associated with birth-related neurological
injuries in order to reduce premium costs for medical malpractice insurance claims.36 Specifically, the fund pays
for “qualifying health care costs,” which includes future medical, hospital, surgical, nursing, dental, rehabilitation,
custodial, durable medical equipment, home modifications, assistive technology, vehicle modifications,
xxiii
prescription and non-prescription medications, and other health care costs actually incurred for services
rendered to and supplies utilized by qualified plaintiffs, which are necessary to meet their health care needs.37
The costs are paid on behalf of “qualified plaintiffs,” defined as every plaintiff or claimant who (i) has been found
by a jury or court to have sustained a birth-related neurological injury as the result of medical malpractice, or (ii)
has sustained a birth-related neurological injury as the result of alleged medical malpractice, and has settled
his or her lawsuit or claim.38
The Fund is administered by the Superintendent of the Department of Financial Services (“DFS”).39 When a
settlement agreement “aris[es] out of a ... birth related neurological injury,” the settlement must provide that “in
the event the administrator of the fund determines that the ... claimant is a qualified plaintiff, all payments for
future medical expenses shall be paid in accordance with this title, in lieu of that portion of the settlement
agreement that provides for payment of such expenses.”40 When such a settlement does not so provide, the
Court shall direct its modification to include this language. In any case in which a jury or judge has made an
award of future medical expenses arising out of a birth-related neurological injury, the future medical expenses
of the plaintiff are paid out of the fund so long as the injury is covered by the statute.
Enrollees of the Fund are plaintiffs in medical malpractice actions who have received either court-approved
settlements or judgments deeming the plaintiffs' neurological impairments to be birth-related. In June, 2015, the
New York Senate introduced a bill seeking to expand the Indemnity Fund to all plaintiffs with neurological
injuries, regardless of age and regardless of whether caused at birth. The bill was introduced by Senator Kemp
Hannon (R— 6th District) and has been referred to the Rules Committee.
Pennsylvania
In 2002, the Pennsylvania Legislature created the Medical Care Availability and Reduction of Error Fund
(“Mcare Fund”).41 The Mcare Fund is the successor to the Medical Professional Liability Catastrophe Loss Fund,
better known as the “CAT Fund” which was originally established in 1975. Participation in the Mcare Fund is
mandatory for licensed Pennsylvania physicians rendering care to 50% of patients in Pennsylvania and it also
covers nurse midwifes, hospitals, nursing homes, and birth centers. Currently, physicians are required to have
$1,000,000 per occurrence limits (and $3 million per annual aggregate) in total limits. The physician must obtain
the first $500,000 in primary liability coverage ($1.5 million annual aggregate).42 Physicians acquire the second
layer from the Mcare Fund. Physicians can obtain the first $500,000 layer either in the private market or through
the Joint Underwriting Association (JUA).43 For hospitals, the total required coverage amounts are $1 million
per occurrence and $4 million per annual aggregate.44 Hospitals must obtain primary coverage in the amount
of $500,000 per occurrence and $2.5 million per annual aggregate.45 The Mcare Fund provides participating
hospitals with $500,000 per occurrence and $1.5 million annual aggregate in excess limits.46
The assessments for the Mcare Fund vary significantly and the annual assessments are collected and then
paid to the state by the basic professional liability insurer.47 The Mcare Fund, and the associated legislation,
does not cap liability to those required by the Mcare Act. Thus, health care providers remain liable for amounts
in excess of the required minimum limits and may purchase additional excess coverage from private insurers
to provide coverage in excess of the Mcare Fund.48
South Carolina
South Carolina created the South Carolina Medical Malpractice Compensation Fund (“Fund”) in 1976.49 The
Fund was created for the purpose of paying that portion of a medical malpractice claim, settlement or judgment
which is in excess of $200,000 for each incident or in excess of $600,000 in the aggregate for one year, up to
xxiv
the amounts determined by the Board of Governors.50 The Fund is liable only for payment of claims against
licensed health care providers in compliance with the provisions of the Enabling Statute Title 38, Chapter 79,
Article 5 and includes reasonable and necessary expenses incurred in payment of claims and the Fund’s
administrative expense. Most healthcare providers in the state obtain their insurance through the Joint
Underwriting Association (“JUA”) and Fund. Unlike the JUA, which is a nonprofit corporation whose members
are the insurance companies authorized to sell malpractice insurance, the Fund is a state agency governed by
a 13-member board appointed by the governor.51
All health care providers have the option of participating in the Fund.52 As members, the health care provider
must pay an annual fee.53 Upon being served with a complaint, the health care provider notifies the Fund’s
Board of Governors of the action.54 If the board determines that the damage amounts may exceed $200,000,
the Fund can actively defend the suit. The insurer providing liability insurance to the health care provider must
provide an adequate defense so as to prevent impairment of the Fund. Settlements that exceed $200,000 must
be approved by the Board of Governors. South Carolina does not impose a cap on the amount of damages that
a claimant can recover in a medical malpractice case so the Fund does not act as a liability cap on damages.
Virginia
In 1987, Virginia enacted the Virginia Birth-Related Neurological Injury Compensation Act.55 The Act removed
claims against physicians who practice obstetrical medicine from the traditional tort system and the rights and
remedies provided to infants under the Act exclude all other rights and remedies at common law or otherwise
arising out of or related to a medical malpractice claim with respect to such injury to the infant, including claims
by the infant’s personal representatives, parents, dependents or next of kin for claims of emotional distress
proximately related to the injury.56 The Act, however, does not foreclose the claims of the infant’s mother for
injuries she suffered during delivery and it does not foreclose civil actions against physicians or hospitals where
there is clear and convincing evidence that such physician or hospital intentionally or willfully caused or intended
to cause a birth-related neurological injury, provided that such suit is filed prior to and in lieu of payment of an
award under this chapter.57 The program is funded by annual assessments paid by participating and nonparticipating physicians and hospitals and liability insurers.
To be eligible for the program, an infant must meet the definition in the act for a birth-related neurological injury,
and the obstetrical services must have been performed by a physician or at a hospital that specifically
participates in the birth injury program. Administration of the Birth-Related Neurological Injury Compensation
Program (birth injury program) involves the program staff and two State agencies. The Workers' Compensation
Commission (WCC) conducts hearings and determines eligibility for claimants who seek entry into the program.
The State Corporation Commission (SCC) has certain financial responsibilities vis-à-vis the fund. The birth injury
board of directors administers the program and the fund. Section 38.2-5009 of the Code of Virginia identifies
three broad categories of benefits that the program is to provide. First, it states that compensation will be
provided for all “medically necessary and reasonable expenses of medical and hospital, rehabilitative,
residential and custodial care and service, special equipment or facilities, and related travel,” except those for
which the claimant has already received reimbursement either under the laws of another government entity or
the policy of another private insurance program. Second, it provides payment (in regular installments) for loss
of earnings from the age of 18 until 65. Third, it allows for reimbursement of “reasonable expenses incurred in
connection with the filing of a claim . . . including reasonable attorney fees.”
xxv
West Virginia
In 2004, the West Virginia Legislature created the West Virginia Patient Injury Compensation Fund (“Fund”).58
The purpose of the fund is to provide compensation to claimants in medical malpractice actions for any portion
of economic damages awarded that is uncollectible as a result of limitations on economic damages awards for
trauma care, or as a result of the operation of joint and several liability principles and standards.59 The Fund is
administered by the Board of Risk and Insurance Management.60 In order to receive payment, a qualified
claimant must establish that he or she has exhausted all reasonable means to recover from all applicable liability
insurance.61 The benefits under the Fund shall not exceed $1 million or the maximum amount of money that
could have been collected from all applicable insurance prior to the creation of the Fund, regardless of the
number of plaintiffs or claimants.62 In addition, payments out of the Fund may be used to pay reasonable
attorney fees of attorneys representing qualified claimants receiving compensation.63
Wisconsin
Wisconsin established the Injured Patients and Families Compensation Fund (“Fund”) in 1975.64 The Fund was
established for the purpose of paying that portion of a medical malpractice claim which is in excess of the
statutory minimums or the maximum liability limit for which the health care provider is insured, whichever is
greater, and paying future medical expense payments.65 The Wisconsin statute requires health care providers
to maintain health care liability insurance of at least $1 million each occurrence and $3 million for all occurrences
in any one year and to and to participate in the Fund by paying assessments that help to fund claims greater
than these amounts.66
The Fund provides participating physicians and other health care providers in Wisconsin with secondary
medical malpractice insurance to cover claims that exceed the coverage limits of their primary insurance. There
is no limit to the compensation the Fund will pay on behalf of participating providers for economic damages,
such as medical costs and loss of income. Noneconomic damages, which include compensation for suffering,
mental distress, and loss of companionship and affections, are currently limited by statute to $750,000.67 The
Fund is governed by a 13-member Board of Governors. The Office of the Commissioner of Insurance has
statutory responsibility for administering the Fund.
Wyoming
In 1977, the Wyoming legislature created a medical liability compensation fund to provide physicians with
excess insurance coverage.68 To qualify for the Fund, a physician must annually purchase health care liability
insurance coverage of not less than $50,000 per occurrence for any act, error or omission relating to medical
care rendered during a policy year and pay the surcharge pursuant to § 26-33-105(c)69 The surcharge shall not
exceed one hundred fifty percent (150%) of the cost to each physician for a basic fifty thousand dollar
($50,000.00) malpractice insurance premium and shall be collected on the same basis as premiums by each
insurer from the physician.70 The surcharge is collected and paid by the professional liability insurer.
A qualified physician’s liability is limited to $50,000 per claim, except that if the insurance procured by the
physician exceeds $50,000, the physician is liable to the extent of his insurance limits.71 A medical malpractice
judgment or settlement in excess of $50,000 against a qualified physician is paid by the fund to the extent of
$1,000,000 per year per physician.72 Any settlement of a claim in excess of $50,000 requires the approval of
the commissioner.73
xxvi
IV. 50 State Summary of Apology Laws
State
Statutes, Regulations and Rules
Key Provisions
Alabama
None
Alaska
None
Arizona
Ariz. Rev. Stat. Ann. § 12-2605
Arkansas
None
California
Cal. Evid. Code § 1160
The portion of statements, writings, or benevolent
gestures expressing sympathy or a general sense of
benevolence relating to the pain, suffering, or death of a
person involved in an accident and made to that person
or to the family of that person shall be inadmissible as
evidence of an admission of liability in a civil action. A
statement of fault, however, which is part of, or in
addition to, any of the above shall not be inadmissible
pursuant to this section.
Colorado
Colo. Rev. Stat. Ann §13-25-135
In any civil action brought by an alleged victim of an
unanticipated outcome of medical care, or in any
arbitration proceeding related to such civil action, any
and all statements, affirmations, gestures, or conduct
expressing apology, fault, sympathy, commiseration,
condolence, compassion, or a general sense of
benevolence which are made by a health care provider
or an employee of a health care provider to the alleged
victim, a relative of the alleged victim, or a representative
of the alleged victim and which relate to the discomfort,
pain, suffering, injury, or death of the alleged victim as
the result of the unanticipated outcome of medical care
shall be inadmissible as evidence of an admission of
liability or as evidence of an admission against interest.
Connecticut
Conn. Gen. Stat. Ann §52-184d
In any civil action brought by an alleged victim of an
unanticipated outcome of medical care, or in any
arbitration proceeding related to such civil action, any
and all statements, affirmations, gestures or conduct
expressing apology, fault, sympathy, commiseration,
condolence, compassion or a general sense of
benevolence that are made by a health care provider or
an employee of a health care provider to the alleged
victim, a relative of the alleged victim or a representative
of the alleged victim and that relate to the discomfort,
pain, suffering, injury or death of the alleged victim as a
result of the unanticipated outcome of medical care shall
In any civil action that is brought against a health care
provider as defined in § 12-561 or in any arbitration
proceeding that relates to the civil action, any statement,
affirmation, gesture or conduct expressing apology,
responsibility, liability, sympathy, commiseration,
condolence, compassion or a general sense of
benevolence that was made by a health care provider or
an employee of a health care provider to the patient, a
relative of the patient, the patient's survivors or a health
care decision maker for the patient and that relates to the
discomfort, pain, suffering, injury or death of the patient
as the result of the unanticipated outcome of medical
care is inadmissible as evidence of an admission of
liability or as evidence of an admission against interest.
xxvii
State
Statutes, Regulations and Rules
Key Provisions
be inadmissible as evidence of an admission of liability
or as evidence of an admission against interest.
Delaware
Del. Code. Ann. tit 10. §4318
Any and all statements, writings, gestures, or
affirmations made by a health care provider or an
employee of a health care provider that express apology
(other than an expression or admission of liability or
fault), sympathy, compassion, condolence, or
benevolence relating to the pain, suffering, or death of a
person as a result of an unanticipated outcome of
medical care, that is made to the person, the person's
family, or a friend of the person or of the person's family,
with the exception of the admission of liability or fault, are
inadmissible in a civil action that is brought against a
health care provider.
District of
Columbia
D.C. Code §16-2841
For the purpose of any civil action or administrative
proceeding alleging medical malpractice against a
healthcare provider, an expression of sympathy or regret
made in writing, orally, or by conduct made by or on
behalf of the healthcare provider to a victim of the
alleged medical malpractice, any member of the victim's
family, or any individual who claims damages by or
through that victim, is inadmissible as an admission of
liability. Nothing herein shall preclude the court from
permitting the introduction of an admission of liability into
evidence.
Florida
Fla. Stat. Ann. §90.4026
The portion of statements, writings, or benevolent
gestures expressing sympathy or a general sense of
benevolence relating to the pain, suffering, or death of a
person involved in an accident and made to that person
or to the family of that person shall be inadmissible as
evidence in a civil action. A statement of fault, however,
which is part of, or in addition to, any of the above shall
be admissible pursuant to this section.
Georgia
Ga. Code Ann. §24-4-416
In any claim or civil proceeding brought by or on behalf
of a patient allegedly experiencing an unanticipated
outcome of medical care, any and all statements,
affirmations, gestures, activities, or conduct expressing
regret, apology, sympathy, commiseration, condolence,
compassion, mistake, error, or a general sense of
benevolence which is made by a health care provider or
an employee or agent of a health care provider to the
patient, a relative of the patient, or a representative of
the patient and which relates to the unanticipated
outcome shall be inadmissible as evidence and shall not
constitute an admission of liability or an admission
against interest.
Guam
Guam Code Ann. tit. 10, §11112
In any civil action that is brought against a health
professional, as defined in § 11102, or in any arbitration
proceeding that relates to the civil action, a statement,
writing or benevolent gesture that:
(1) expresses sympathy or a general sense of
benevolence relating to the pain, suffering or death of the
patient involved in the incident with the health
professional; and
xxviii
State
Statutes, Regulations and Rules
Key Provisions
(2) is made to the patient or to the family of the patient is
inadmissible as evidence of an admission of liability.
A statement of fault, however, which is part of, or in
addition to, any of the above shall be admissible.
Hawaii
Haw. Rev. Stat. §626-1, Rule 409.5
Evidence of statements or gestures that express
sympathy, commiseration, or condolence concerning the
consequences of an event in which the declarant was a
participant is not admissible to prove liability for any
claim growing out of the event. This rule does not require
the exclusion of an apology or other statement that
acknowledges or implies fault even though contained in,
or part of, any statement or gesture excludable under
this rule.
Idaho
Idaho Code Ann. §9-207
In any civil action brought by or on behalf of a patient
who experiences an unanticipated outcome of medical
care, or in any arbitration proceeding related to, or in lieu
of, such civil action, all statements and affirmations,
whether in writing or oral, and all gestures or conduct
expressing apology, sympathy, commiseration,
condolence, compassion, or a general sense of
benevolence, including any accompanying explanation,
made by a health care professional or an employee of a
health care professional to a patient or family member or
friend of a patient, which relate to the care provided to
the patient, or which relate to the discomfort, pain,
suffering, injury, or death of the patient as the result of
the unanticipated outcome of medical care shall be
inadmissible as evidence for any reason including, but
not limited to, as an admission of liability or as evidence
of an admission against interest.
Illinois
None
Indiana
Ind. Code § 34-43.5-1-4
Except as provided in section 5 of this chapter, a court
may not admit into evidence a communication of
sympathy that relates to (1) a loss; (2) an injury; (3) pain;
(4) suffering; (5) a death; or (6) damage to property.
Iowa
Iowa Code §622.31
In any civil action for professional negligence, personal
injury, or wrongful death or in any arbitration proceeding
for professional negligence, personal injury, or wrongful
death against a person in a profession regulated by one
of the boards listed in section 272C.1 or in any other
licensed profession recognized in this state, a hospital
licensed pursuant to chapter 135B, or a health care
facility licensed pursuant to chapter 135C, based upon
the alleged negligence in the practice of that profession
or occupation, that portion of a statement, affirmation,
gesture, or conduct expressing sorrow, sympathy,
commiseration, condolence, compassion, or a general
sense of benevolence that was made by the person to
the plaintiff, relative of the plaintiff, or decision maker for
the plaintiff that relates to the discomfort, pain, suffering,
injury, or death of the plaintiff as a result of an alleged
breach of the applicable standard of care is inadmissible
as evidence. Any response by the plaintiff, relative of the
xxix
State
Statutes, Regulations and Rules
Key Provisions
plaintiff, or decision maker for the plaintiff to such
statement, affirmation, gesture, or conduct is similarly
inadmissible as evidence.
.
Kansas
None
Kentucky
None
Louisiana
La. Rev. Stat. Ann. §13:3715.5
Any communication, including but not limited to an oral
or written statement, gesture, or conduct by a health care
provider expressing or conveying apology, regret, grief,
sympathy, commiseration, condolence, compassion, or a
general sense of benevolence made to a patient, a
relative of the patient, or an agent or representative of
the patient, shall not constitute an admission as defined
in Code of Evidence Article 801(D)(2) or a statement
against interest as defined in Code of Evidence Article
804(B)(3), and shall not be admissible in evidence to
establish liability or for any other purpose, including
impeachment, in a medical review panel proceeding,
arbitration proceeding, or civil action brought by or on
behalf of the patient or by or on behalf of an heir,
survivor, statutory beneficiary, or agent or representative
of the patient against the health care provider who made
the communication. A statement of fault, however, which
is part of, or in addition to, any such communication shall
not be made inadmissible pursuant to this Section.
Maine
Me. Rev. Stat. Ann. tit. 24 §2907
In any civil action for professional negligence or in any
arbitration proceeding related to such civil action, any
statement, affirmation, gesture or conduct expressing
apology, sympathy, commiseration, condolence,
compassion or a general sense of benevolence that is
made by a health care practitioner or health care
provider or an employee of a health care practitioner or
health care provider to the alleged victim, a relative of
the alleged victim or a representative of the alleged
victim and that relates to the discomfort, pain, suffering,
injury or death of the alleged victim as the result of the
unanticipated outcome is inadmissible as evidence of an
admission of liability or as evidence of an admission
against interest. Nothing in this section prohibits the
admissibility of a statement of fault.
Maryland
Md. Code Ann., Cts & Jud Proc §10920
Except as provided in paragraph (2) of this subsection, in
a proceeding subject to Title 3, Subtitle 2A of this article
or a civil action against a health care provider, an
expression of regret or apology made by or on behalf of
the health care provider, including an expression of
regret or apology made in writing, orally, or by conduct,
is inadmissible as evidence of an admission of liability or
as evidence of an admission against interest.
(2) An admission of liability or fault that is part of or in
addition to a communication made under paragraph (1)
of this subsection is admissible as evidence of an
admission of liability or as evidence of an admission
against interest in an action described under paragraph
(1) of this subsection.
xxx
State
Statutes, Regulations and Rules
Key Provisions
Massachusetts
Mass. Gen. Laws Ann. ch 233 §23d
Statements, writings or benevolent gestures expressing
sympathy or a general sense of benevolence relating to
the pain, suffering or death of a person involved in an
accident and made to such person or to the family of
such person shall be inadmissible as evidence of an
admission of liability in a civil action.
Michigan
Mich. Laws. Ann. ch. 600.2155
A statement, writing, or action that expresses sympathy,
compassion, commiseration, or a general sense of
benevolence relating to the pain, suffering, or death of an
individual and that is made to that individual or to the
individual's family is inadmissible as evidence of an
admission of liability in an action for medical malpractice.
(2) This section does not apply to a statement of fault,
negligence, or culpable conduct that is part of or made in
addition to a statement, writing, or action described in
subsection (1).
Minnesota
None
Mississippi
None
Missouri
Mo. Rev. Stat. §538.229
The portion of statements, writings, or benevolent
gestures expressing sympathy or a general sense of
benevolence relating to the pain, suffering, or death of a
person and made to that person or to the family of that
person shall be inadmissible as evidence of an
admission of liability in a civil action. However, nothing in
this section shall prohibit admission of a statement of
fault.
Montana
Mont. Code Ann. §26-1-814
A statement, affirmation, gesture, or conduct expressing
apology, sympathy, commiseration, condolence,
compassion, or a general sense of benevolence relating
to the pain, suffering, or death of a person that is made
to the person, the person's family, or a friend of the
person or of the person's family is not admissible for any
purpose in a civil action for medical malpractice.
Nebraska
Neb. Rev. Stat. §27-1201
In any civil action brought by an alleged victim of an
unanticipated outcome of medical care, or in any
arbitration proceeding related to such civil action, any
and all statements, affirmations, gestures, or conduct
expressing apology, sympathy, commiseration,
condolence, compassion, or a general sense of
benevolence which are made by a health care provider
or an employee of a health care provider to the alleged
victim, a relative of the alleged victim, or a representative
of the alleged victim and which relate to the discomfort,
pain, suffering, injury, or death of the alleged victim as a
result of the unanticipated outcome of medical care shall
be inadmissible as evidence of an admission of liability
or as evidence of an admission against interest. A
statement of fault which is otherwise admissible and is
part of or in addition to any such communication shall be
admissible.
Nevada
None
New Hampshire
N.H. Rev. Stat. Ann. §507-E:4
II. A statement, writing, or action that expresses
sympathy, compassion, commiseration, or a general
xxxi
State
Statutes, Regulations and Rules
Key Provisions
sense of benevolence relating to the pain, suffering, or
death of an individual and that is made to that individual
or to the individual's family is inadmissible as evidence of
an admission of liability in a medical injury action.
III. This section does not apply to a statement of fault,
negligence, or culpable conduct that is part of or made in
addition to a statement, writing, or action described in
paragraph II.
New Jersey
None
New Mexico
New York
None
None
North Carolina
N.C. Gen. Stat. §8C-1, Rule 413
Statements by a health care provider apologizing for an
adverse outcome in medical treatment, offers to
undertake corrective or remedial treatment or actions,
and gratuitous acts to assist affected persons shall not
be admissible to prove negligence or culpable conduct
by the health care provider in an action brought under
Article 1B of Chapter 90 of the General Statutes
North Dakota
N.D. Cent. Code §31-04-12
A statement, affirmation, gesture, or conduct of a health
care provider, or health care provider's employee or
agent, which expresses apology, sympathy,
commiseration, condolence, compassion, or
benevolence to a patient or to a patient's relative or
representative is not admissible as evidence of liability or
as an admission against interest in a civil action,
arbitration proceeding, or administrative hearing
regarding the health care provider.
Ohio
Ohio Rev. Code. Ann §2317.43
In any civil action brought by an alleged victim of an
unanticipated outcome of medical care or in any
arbitration proceeding related to such a civil action, any
and all statements, affirmations, gestures, or conduct
expressing apology, sympathy, commiseration,
condolence, compassion, or a general sense of
benevolence that are made by a health care provider or
an employee of a health care provider to the alleged
victim, a relative of the alleged victim, or a representative
of the alleged victim, and that relate to the discomfort,
pain, suffering, injury, or death of the alleged victim as
the result of the unanticipated outcome of medical care
are inadmissible as evidence of an admission of liability
or as evidence of an admission against interest.
Oklahoma
Okla. Stat. tit 63 §1-1708.1 H
In any medical liability action, any and all statements,
affirmations, gestures, or conduct expressing apology,
sympathy, commiseration, condolence, compassion, or a
general sense of benevolence which are made by a
health care provider or an employee of a health care
provider to the plaintiff, a relative of the plaintiff, or a
representative of the plaintiff and which relate solely to
discomfort, pain, suffering, injury, or death as the result
of the unanticipated outcome of the medical care shall be
inadmissible as evidence of an admission of liability or as
evidence of an admission against interest.
xxxii
State
Statutes, Regulations and Rules
Key Provisions
Oregon
Or. Rev. Stat §677.082
For the purposes of any civil action against a person
licensed by the Oregon Medical Board or a health care
institution, health care facility or other entity that employs
the person or grants the person privileges, any
expression of regret or apology made by or on behalf of
the person, the institution, the facility or other entity,
including an expression of regret or apology that is made
in writing, orally or by conduct, does not constitute an
admission of liability.
Pennsylvania
Pa. Stat. tit. 35, §10228.1 et seq.
This section applies to any benevolent gesture made
prior to the commencement of a medical professional
liability action, administrative action, mediation or
arbitration:
(1) by a health care provider or an officer, employee or
agent of a health care provider to a patient or resident or
the patient's or resident's relative or representative
regarding the patient's or resident's discomfort, pain,
suffering, injury or death, regardless of the cause,
resulting from any treatment, consultation, care or
service or omission of treatment, consultation, care or
service provided by the health care provider, assisted
living residence or its employees, agents or contractors;
or
* **
Except as set forth in paragraph (2), any benevolent
gesture described in subsection (a) shall be inadmissible
as evidence of liability.
Rhode Island
None
South Carolina
S.C. Code Ann. §19-1-190(D)
In any claim or civil action brought by or on behalf of a
patient allegedly experiencing an unanticipated outcome
of medical care, any and all statements, affirmations,
gestures, activities, or conduct expressing benevolence,
regret, apology, sympathy, commiseration, condolence,
compassion, mistake, error, or a general sense of
benevolence which are made by a health care provider,
an employee or agent of a health care provider, or by a
health care institution to the patient, a relative of the
patient, or a representative of the patient and which are
made during a designated meeting to discuss the
unanticipated outcome shall be inadmissible as evidence
and shall not constitute an admission of liability or an
admission against interest.
South Dakota
S.D. Codified Laws §19-19-411.1
No statement made by a health care provider
apologizing for an adverse outcome in medical
treatment, no offer to undertake corrective or remedial
treatment or action, and no gratuitous act to assist
affected persons is admissible to prove negligence by
the health care provider in any action for damages for
personal injury or death alleging malpractice against any
health care provider. Nothing in this section prevents the
admission, for the purpose of impeachment, of any
statement constituting an admission against interest by
the health care provider making such statement.
xxxiii
State
Statutes, Regulations and Rules
Key Provisions
Tennessee
Tenn. Code Ann., Rule 409.1
That portion of statements, writings, or benevolent
gestures expressing sympathy or a general sense of
benevolence relating to the pain, suffering or death of a
person involved in an accident and made to such person
or to the family of such person shall be inadmissible as
evidence of an admission of liability in a civil action. A
statement of fault that is part of, or in addition to, any of
the above shall not be inadmissible because of this Rule.
Texas
Tex .Rev. Civ. Prac. & Rem. Code
Ann §18.061
Utah
Utah Rules of Evidence, Rule 409
A court in a civil action may not admit a communication
that: (1) expresses sympathy or a general sense of
benevolence relating to the pain, suffering, or death of an
individual involved in an accident;(2) is made to the
individual or a person related to the individual within the
second degree by consanguinity or affinity, as
determined under Subchapter B, Chapter 573,
Government Code; and (3) is offered to prove liability of
the communicator in relation to the individual.
Evidence of unsworn statements, affirmations, gestures,
or conduct made to a patient or a person associated with
the patient by a defendant that expresses the following is
not admissible in a malpractice action against a health
care provider or an employee of a health care provider to
prove liability for an injury; (1) apology, sympathy,
commiseration, condolence, compassion, or general
sense of benevolence; or (2) a description of the
sequence of events relating to the unanticipated
outcome of medical care or the significance of events.
Vermont
Vt. Stat. Ann. tit 12 §1912
In any civil or administrative proceeding against a health
care provider or health care facility, including any
arbitration or mediation proceeding, the health care
provider, health care facility, or any other person who
makes an oral expression of regret or apology, including
any oral good faith explanation of how a medical error
occurred, on behalf of the provider or facility, that is
provided within 30 days of when the provider or facility
knew or should have known of the consequences of the
potential adverse outcome, may not be examined by
deposition or otherwise with respect to the expression of
regret, apology, or explanation.
Virginia
Va. Code Ann. §8.01-581.20:1
In any civil action brought by an alleged victim of an
unanticipated outcome of health care, or in any
arbitration or medical malpractice review panel
proceeding related to such civil action, the portion of
statements, writings, affirmations, benevolent conduct, or
benevolent gestures expressing sympathy,
commiseration, condolence, compassion, or a general
sense of benevolence, together with apologies that are
made by a health care provider or an agent of a health
care provider to the patient, a relative of the patient, or a
representative of the patient, shall be inadmissible as
evidence of an admission of liability or as evidence of an
admission against interest. A statement of fault that is
part of or in addition to any of the above shall not be
made inadmissible by this section.
xxxiv
State
Washington
Statutes, Regulations and Rules
Wash. Rev. Code Ann §5.64.010
Key Provisions
In a civil action against a health care provider for
personal injuries that is based upon alleged professional
negligence, or in any arbitration or mediation proceeding
related to such civil action, a statement, affirmation,
gesture, or conduct identified in (b) of this subsection is
not admissible as evidence if:
(i) It was conveyed by a health care provider to the
injured person, or to a person specified in RCW 7.70.065
(1)(a) or (2)(a) within thirty days of the act or omission
that is the basis for the allegation of professional
negligence or within thirty days of the time the health
care provider discovered the act or omission that is the
basis for the allegation of professional negligence,
whichever period expires later; and
(ii) It relates to the discomfort, pain, suffering, injury, or
death of the injured person as the result of the alleged
professional negligence.
(b) (a) of this subsection applies to:
(i) Any statement, affirmation, gesture, or conduct
expressing apology, fault, sympathy, commiseration,
condolence, compassion, or a general sense of
benevolence; or
(ii) Any statement or affirmation regarding remedial
actions that may be taken to address the act or omission
that is the basis for the allegation of negligence.
West Virginia
W. Va. Code §55-7-11a
No statement, affirmation, gesture or conduct of a
healthcare provider who provided healthcare services to
a patient, expressing apology, sympathy, commiseration,
condolence, compassion or a general sense of
benevolence, to the patient, a relative of the patient or a
representative of the patient and which relate to the
discomfort, pain, suffering, injury or death of the patient
shall be admissible as evidence of an admission of
liability or as evidence of an admission against interest in
any civil action brought under the provisions of article
seven-b, chapter fifty-five of this code, or in any
arbitration, mediation or other alternative dispute
resolution proceeding related to such civil action.
Wisconsin
W.S.A. 904.14
A statement, a gesture, or the conduct of a health care
provider, or a health care provider's employee or agent,
that satisfies all of the following is not admissible into
evidence in any civil action, administrative hearing,
disciplinary proceeding, mediation, or arbitration
regarding the health care provider as evidence of liability
or as an admission against interest:
(a) The statement, gesture, or conduct is made or occurs
before the commencement of the civil action,
administrative hearing, disciplinary proceeding,
mediation, or arbitration.
(b) The statement, gesture, or conduct expresses
apology, benevolence, compassion, condolence, fault,
xxxv
State
Statutes, Regulations and Rules
Key Provisions
liability, remorse, responsibility, or sympathy to a patient
or his or her relative or representative.
Wyoming
Wyo. Stat. Ann. §1-1-130
In any civil action or arbitration brought by an alleged
victim of an unanticipated outcome of medical care
against a health care provider, any and all statements,
affirmations, gestures or conduct expressing apology,
sympathy, commiseration, condolence, compassion or a
general sense of benevolence that are made by a health
care provider or an employee of a health care provider to
the alleged victim, or to a relative or representative of the
alleged victim, and that relate to the discomfort, pain,
suffering, injury or death of the alleged victim as the
result of the unanticipated outcome of medical care, are
inadmissible as evidence of an admission of liability or as
evidence of an admission against interest.
1
F.S.A. § 766.301
F.S.A. § 766.303(1)
3
F.S.A. § 766.313
4
F.S.A. § 766.309(1)(a)
5
F.S.A. § 766.309
6
F.S.A. § 766.331
7
F.S.A. § 766.303
8
Id.
9
Ind. Code § 34-18-6-1 et seq.
10
Ind. Code §§ 34-18-2-24.5 and 34-18-3-2.
11
Ind. Code § 34-18-4-1
12
Id.
13
Ind. Code § 34-18-14-3(a)(3)
14
Ind. Code. §§ 34-18-6-6 and 34-18-15-4
15
K.S.A. 40-3401 et seq.
16
K.S.A. 40-3402(a)
17
K.S.A. 40-3403
18
K.S.A. 40-3403(l)
19
La. R.S. 40:1231.2.B.(2)
20
Id.
21
La. R.S. 40:1231.7
22
La. R.S. 40:1231.2B.(2)
23
Id.
24
Neb. Rev. St. § 44-2829
25
Neb. Rev. St. §§ 44.2827 and 44-2824
26
Neb. Rev. St. § 44.2827
27
Neb. Rev. St. § 44-2825(2)
28
Neb. Rev. St. § 44-2825(1)
29
N.M.S.A. 1978, § 41-5-1, et seq.
30
N.M.S.A. 1978, § 41-5-25
31
N.M.S.A. 1978, § 41-5-5
32
Id.
33
N.M.S.A. 1978, § 41-5-25
34
N.M.S.A. 1978, § 41-5-6
35
N.Y. Pub. Health Law § 2999-g et seq.
36
N.Y. Pub. Health Law § 2999-g
2
3313122v.2
xxxvi
37
N.Y. Pub. Health Law § 2999-h(3)
Id.
39
N.Y. Pub. Health Law § 2999-i
40
N.Y. Pub. Health Law § 2999-j(6)
41
40 P.S. § 1303.712 et seq.
42
40 P.S. § 1303.711(d)
43
Id.
44
Id.
45
Id.
46
Id.
47
40 P.S. § 1303.712(d)
48
40 P.S. § 1303.711(h)
49
S.C. Code 1976 § 38-79-410
50
Id.
51
S.C. Code 1976 § 38-79-430
52
S.C. Code Ann. § 38-79-440
53
S.C. Code Ann. § 38-79-450
54
S.C. Code Ann. § 38-79-480
55
Va. Code § 38.2-5000
56
Va. Code § 38.2-5002.B
57
Va. Code § 38.2-5002.C
58
W.Va. Code § 29-12D-1
59
Id.
60
W.Va. Code § 29-12D-2
61
W.Va. Code § 29-12D-3
62
Id.
63
Id.
64
W.S.A. § 655.27
65
Id.
66
W.S.A. § 655.23
67
W.S.A. § 655.017 and W.S.A. § 893.55
68
Wyo. Stat. Ann. §§ 26-33-101 to 26-33-105
69
Wyo. Stat. Ann. § 26-33-102
70
Wyo. Stat. Ann. § 26-33-105(c)
71
Wyo. Stat. Ann. § 26-33-105
72
Id.
73
Wyo. Stat. Ann. § 26-33-107
38
The information provided herein is general in nature and should not be construed as legal advice. If you
require legal advice, you should seek qualified counsel.
xxxvii
American International Group, Inc. (AIG) is a leading global insurance organization serving customers in more than 100 countries and jurisdictions. AIG companies serve commercial, institutional, and
individual customers through one of the most extensive worldwide property-casualty networks of any insurer. In addition, AIG companies are leading providers of life insurance and retirement services in
the United States. AIG common stock is listed on the New York Stock Exchange and the Tokyo Stock Exchange.
Additional information about AIG can be found at www.aig.com | YouTube: www.youtube.com/aig | Twitter: @AIGinsurance | LinkedIn: www.linkedin.com/company/aig
AIG is the marketing name for the worldwide property-casualty, life and retirement, and general insurance operations of American International Group, Inc. For additional information, please visit our
website at www.aig.com. All products and services are written or provided by subsidiaries or af liates of American International Group, Inc. Products or services may not be available in all countries, and
coverage is subject to actual policy language. Non-insurance products and services may be provided by independent third parties. Certain property-casualty coverages may be provided by a surplus lines
insurer. Surplus lines insurers do not generally participate in state guaranty funds, and insureds are therefore not protected by such funds. The content contained herein is intended for general
informational purposes only, and should not be viewed
as a substitute for legal, regulatory, accounting or other advice on any particular issue or for any particular reason.
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