State Corner - Medical Liability Reform: Initiative in Arkansas up for Vote in 2018
The American Association of Orthopaedic Surgeons (AAOS) is committed to safe, accessible, cost-effective and quality patient care. However, the structure of the current medical liability system limits the ability of physicians to provide the highest quality patient care, and systematic medical liability reform is needed to improve the overall health care system.
The Arkansas Orthopaedic Society is working on a ballot initiative to set caps on compensation for non-economic damages and on punitive damages. Called Issue I, it limits contingency fees of lawyers to one-third the net amount recovered. The ballot initiative would decrease from 66.67 percent to 60 percent the supermajority vote requirement in the legislature to amend or repeal court rules regarding pleading, practice, or procedure prescribed by the Arkansas Supreme Court. It would also require a two-thirds (66.67 percent) supermajority vote for the legislature to make certain changes to the limits in the amendment. Currently, Arkansas has no limit on non-economic damages and does not set a limit on attorney contingency fees.
Business and medical interests—including the Arkansas Chamber of Commerce, Walmart, the Arkansas Trucking Association, the Arkansas Medical Society, and the Arkansas Hospital Association—are backing Issue I. They argue that it will protect hospitals, nursing homes, and businesses from frivolous lawsuits, thereby allowing economic growth and lowering healthcare costs. Attorneys and law firms, however, are aligned with certain faith and community interests in opposition. They argue that Issue I is an effort by business interests and corporations to protect their profits at the expense of Arkansas residents’ rights, and that it assigns an unfair and arbitrary value to life and health.
Few public polls have been conducted on Issue I’s specific language, but the following polls were run on similar ballot initiatives in other states:
- A similar ballot initiative in Texas won with 51 percent in 2003.
- A ballot initiative in Florida to cap attorney fees won with 63 percent of the vote in 2004.
- A similar ballot initiative in Oregon failed with 49 percent in 2004.
- In Arkansas, 66 percent of the State House and 64 percent of the State Senate supported the resolution that created this ballot initiative.
The AAOS believes that there is an urgent need to improve patient safety and access to care, decrease defensive medicine, and reduce the cost of health care through medical liability reform.
Read AAOS’ official position statement here.