Legislative sessions are underway in our various states, and we are actively working to provide advocacy on legislative proposals that impact the medical professional and hospital professional liability environment and healthcare community. We have deep experience working collaboratively on the side of the defense and have had success in chambers with narrow margins and challenging legislative environments. In addition, we continue to engage in government-relations activities that address healthcare providers and facilities around the COVID-19 outbreak at both federal and state levels. We are working with our national and state strategic partners to reduce the threat of liability for facilities, healthcare professionals, and their patients. Below is a brief update.
The legislative environment remains the same, with the Democrats in control of both chambers. Although there are some new members, the margins in both chambers remain unchanged, with 28 Democrats to 21 Republicans in the Senate (1 Democrat caucuses with the Republicans) and 57 Democrats to 41 Republicans in the House of Representatives for the biennium 2021–2022 session. The 2021 session ran 105 days, convened January 11, and is scheduled to adjourn April 25.
Due to COVID-19, the session will be fully remote and all public hearings and actions will be held online. We anticipate that roughly 2,500–3,000 bills will be introduced for consideration this session. We also anticipate several challenges to the MPL/HPL environment, healthcare facilities, providers, and their patients. Of concern this year is legislation that increases healthcare costs by raising the amount due for pre-judgment interest, legislation addressing data privacy and cybersecurity, legislation that expands liability for healthcare providers, and several legislative proposals that include a private right of action. However, we are well-positioned with our partners to address those challenges. We will continue to seek COVID-19 liability protections and have been working with stakeholders, including the plaintiff trial bar, to introduce legislation that provides COVID-19 standard-of-care language for healthcare providers (SB 5271).
For more information: https://leg.wa.gov
As in Washington, the legislative environment remains relatively the same, with the Democrats in control of both chambers. The Senate remains at 18 Democrats to 12 Republicans, while the House of Representatives gained one Republican seat for 37 Democrats to 23 Republicans for the biennium 2021–2022 session. The 2021 session will run 160 days, and convened January 19. It is scheduled to adjourn around June 27. Due to the impact of COVID-19, the session will be conducted remotely until early March; however, we anticipate that the virtual session will be extended. The Oregon Legislature does not have a bill limit for the 2021 session, so as in Washington, we anticipate that roughly 2,500–3,000 bills will be introduced this session. This is also the year that both Washington and Oregon must negotiate and pass a working budget for their states, which usually results in extended special sessions.
We anticipate several challenges to the MPL/HPL environment, healthcare facilities, providers, and their patients, and are well positioned to address those anticipated challenges. Of concern this year are legislation that adds insurance to the Unlawful Trade Practices Act and legislation that expands the types of lawsuits that are brought against insurance companies. During the 2020 special session, stakeholders met to negotiate and agree to COVID-19 liability protections. Those COVID-19 liability protections passed the Senate by the majority, but failed to pass the House of Representatives. We will continue to seek passage of COVID-19 liability protections and continue to work with the stakeholders, including the plaintiff trial bar, to introduce legislation that provides limited liability for certain claims for damages arising out of acts of omissions in reasonable compliance with government guidelines (HB 2638).
Legislation has also been filed to repeal the sunset on the Early Discussion and Resolution program for adverse healthcare incidents. We are prepared to address challenges to the $500,000 wrongful-death non-economic damage cap if necessary, and will be following the legislation expanding the Oregon Tort Claims Act.
For more information: https://www.oregonlegislature.gov
In Idaho, the legislative environment remains the same, with Republicans in control of both chambers. The Senate will have 28 Republicans to seven Democrats. The House of Representatives will have 58 Republicans to 12 Democrats. The 2021 session convened January 11, and was scheduled to adjourn March 31. Due to the impact of COVID-19, the Idaho Legislature will be limiting the number of bills introduced this session. Our draft phantom-damage legislation prepared for the 2021 session will most likely not be introduced until 2022. Idaho is considering SCR101, which would effectively end the current emergency declaration regarding Idaho’s response to the COVID-19 pandemic. We are working with our partners in Idaho to remove or extend the sunset in Idaho’s current COVID-19 liability protections, along with introducing amendments that strengthen the protections to cover additional claims, not just claims relating to exposure and transmission. The sunset for COVID-19 liability protections is due to expire in summer 2021.
For more information: https://legislature.idaho.gov
In California, we continue to collaborate with our strategic partners to prepare for the 2022 ballot challenge to increase the $250,000 cap on non-economic damages recoverable in personal injury and wrongful-death actions in California’s Medical Injury Compensation Reform Act.
For more information: https://micra.org
The recent results of the 2020 state and federal elections, particularly the change in control of the 117th Congress in the U.S. Senate, leads to a new environment with challenges and opportunities that could impact the MPL/HPL environment and healthcare community. Republicans briefly held the majority at the beginning of the term, but after January 20, they hold 50 seats, and the Democrats hold 48, with the two Independents who caucus with the Democrats effectively making the Senate a 50-50 split. Vice President Kamala Harris will serve as the tiebreaker in her role as Senate President, giving the Democrats control of the Senate and full control of the 117th Congress.
In the House of Representatives, the Democrats retain their majority with the narrowest margins seen in 60 years. It will be the swing votes that determine the legislative priorities and bills addressed this Congress. We anticipate the priorities of Congress to include the passage of legislation and the implementation of regulations to strengthen the Affordable Care Act, reduce prescription-drug prices, and advance data-privacy legislation. The Collaborative for Accountability and Improvement recently unveiled information for states seeking to establish communication and resolution programs, similar to Oregon’s Early Discussion and Resolution program for adverse healthcare incidents.
We are working with our partners to promote legislation that provides reasonable COVID-19 liability protections for healthcare providers and facilities who are leading the efforts to address the pandemic, legislation that strengthens Good Samaritan provisions, and legislation that includes telemedicine liability protections as telemedicine continues to expand.