Don't Just Fight the Law, Change It!

Radiologists have learned to use the legislative system to counteract unfair court rulings.dont just fight the law

In the July 2013 Bulletin column entitled "If You Fought the Law," we discussed how and why the College decided not to bring a lawsuit against the federal government over the method and information used to justify reductions in reimbursement for some types of medical imaging.

In that discussion, we noted how, even when someone wins or appears to be winning in court, the other side can ask the legislature to change the law in its favor. The example we provided was the antitrust law against the National Resident Match Program, where conveners of the program convinced Congress to grant the Match a specific exemption from federal antitrust law, after which the court dismissed the antitrust case.

Conversely, when someone loses in court, they may be able to convince the legislature to pass laws that effectively overrule a court decision. Two recent state situations illustrate how this might be accomplished. In the first situation, the Oklahoma Supreme Court had issued a series of rulings that effectively rendered tort reform laws ineffective, including a cap on non-economic damages. In response, the state's physicians convinced the legislature to enact a new Comprehensive Lawsuit Reform Act that raised the damages cap to $400,000, added a certificate of merit requirement, reformed liability rules, and restricted the scope of permissible scientific testimony. Then, in June 2013, the Oklahoma Supreme Court ruled that the act violated the state constitution because it addressed several subjects rather than a single subject as required by the constitution. As a result, the certificate of merit, liability rules, scientific testimony, and damages cap were declared void. Interestingly, at the behest of the physicians, and in possible anticipation of the court ruling, the legislature passed separate $350,000 non-economic damages cap and liability reform bills, which were not affected by the court's ruling and are still in effect. The physicians likely will seek additional separate bills to reinstate the scientific testimony and certificate of merit laws.

Florida is another state in which there has been an ongoing struggle between the courts and the legislature in matters of great importance to physicians. In Florida, physicians who were witnesses, as opposed to defendants, in medical malpractice cases had long been allowed to consult with their personal attorneys before being required to testify about their own treatment of a patient who was a plaintiff. For example, this might apply to a primary care physician in a case involving a claim against a surgeon or radiologist. In late 2012, the Florida Supreme court ruled that all patient information was private and covered by physician-patient privilege. Therefore, a treating physician who was merely a witness could not discuss a patient's treatment with his own lawyer or, for that matter, his insurance company's lawyer. Obviously, this might result in witness physicians making statements that could put them at risk of being sued themselves. In Florida, defense lawyers were not permitted to interview treating physicians prior to filing suit without counsel for the plaintiff present. At the same time, physicians were concerned about a trend in which Florida judges were permitting what were called "similar specialty" physicians such as hospitalists and internists to testify as expert witnesses about standard of care for cases in which specialists were defendants. In response, Florida physicians mobilized their forces and lobbied for a number of new reforms to address these issues. Recently, they claimed success when the Florida legislature passed a bill that solved most of the problems. Florida SB 1762 did the following:

• Effectively overturned the Supreme Court ruling by specifically authorizing providers to discuss their patients' care with an attorney in preparation for testimony, deposition, or other discovery process

• Specifically authorized a provider's defense counsel to interview treating physicians prior to filing suit

• Specifically authorized a provider's defense counsel to interview treating physicians without the plaintiff's counsel present (with some limitations)

• Required standard of care witnesses to be from the same specialty as the provider about whose care they are testifying

When someone loses in court, they may be able to convince the legislature to pass laws that effectively overrule a court decision.

In still other states, courts have ruled that non-economic damages caps are unconstitutional, only to have physicians and their legislative allies successfully work to amend the state constitution to authorize the desired damage caps, thus taking such determinations out of the hands of the courts.

These examples clearly show that losing the first or even subsequent rounds in court does not necessarily mean defeat. Politically active physicians have learned to work within the system to achieve their goals on numerous important issues. The ACR and ACR Association (ACRA) have assisted our members in many of these advocacy efforts and stand ready to do the same for any chapter that requests help in the future.

By Bill Shields, JD, LLM, CAE, and Tom Hoffman, JD, CAE

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