Wyoming Tort Reform Constitutional Amendment Fails

A proposed constitutional amendment to limit damage awards for medical malpractice died in the Wyoming legislature, but other cost-saving measures for doctors and insurance companies remain on the table.

The other measures include reimbursing obstetricians for some of their medical malpractice insurance, holding the state responsible for part of malpractice awards under $1 million and establishing a state review panel for malpractice cases.

A Senate tort-reform amendment needed a two-thirds vote but fell two votes short, 18-12. A similar amendment in the House came up five votes shy, with 35 in favor and 22 against, so neither resolution will go to the public.

Both proposals would have allowed the Legislature to limit awards for non-economic damages such as for pain, suffering and loss of enjoyment of life. The resolutions would not have affected awards for treatment costs and lost income.

Before the Senate vote, Sen. John Barrasso, R-Casper, spoke in favor of the constitutional amendment, waving a form letter urging him to move his orthopedic surgery practice to a state that had enacted tort reform. He described how similar messages have clogged his e-mail.

“We are in play in Wyoming,” he said, adding a few minutes later: “I’m hoping that my colleagues all reject letters like this. But they’re all getting them.”

Sen. Jayne Mockler, D-Cheyenne, countered that Wyoming’s court system works well and that other solutions are needed to discourage doctors from seeking greener pastures. “We are going into our constitution to carve out an exception for a select group of people,” she said.

In the House, Rep. Wayne Johnson, R-Cheyenne, opened a nearly 90-minute debate with an emotional recounting of the loss of his 17-year-old daughter on the operating table after routine knee surgery in 1987. The current system allows someone like him and his wife to seek full compensation for damages, he said.

“We had a level playing field because of our Wyoming Constitution,” he said.

Rep. Jeff Wasserburger, R-Gillette, citing a doctor shortage in his community, argued there is nothing wrong with changing the constitution. “Constitutions are living, breathing, viable documents that change with the times,” he said.

Rep. George McMurtrey, R-Rozet, also arguing in favor of the amendment, said doctors are leaving the state because of the high cost of insurance and that the people should be allowed to decide if caps ought to imposed.

But Rep. Wayne Reese, R-Cheyenne, produced a chart showing some states with the lowest malpractice premiums have no caps, while others that have enacted caps have some of the highest rates. “There’s no evidence that caps … help keep medical malpractice insurance down,” he said.

The House later defeated an attempt to reconsider the resolution, with 26 members in favor of a second vote and 28 opposed.
Gov. Dave Freudenthal, a proponent of sending the matter to voters, credited the Legislature for giving the matter a full hearing.

“I appreciate the time and attention legislators have dedicated to this matter,” he said. “While I am disappointed, I was glad to see the constitutional amendment get the debate it deserved. I expect to continue to work on this issue.”

Less than an hour before it nixed the constitutional amendment, the Senate approved over the objection of Senate President April Brimmer Kunz, R-Cheyenne spending $3.2 million to reimburse obstetricians for the cost of their medical malpractice insurance.

Kunz called it a “trend toward socialism” and a national health care system. “How can you make the argument for the person who needs heart attention … that obstetrics are more important?” she asked.

The bill was crafted in response to small towns losing obstetrics practices.

A proposed amendment that would raise the funding to $4.42 million failed 18-12. But another amendment limiting the reimbursement to obstetricians who are at least 40 miles from another obstetrician passed 17-13. The bill then passed 17-13 and heads to the House.

The House voted 37-20 Wednesday in favor of creating a $5 million fund to help offset doctors’ liability for non-economic damages. The state would pay for damages above $350,000 but no more than $650,000 per case.

Proponents said the bill offers a way to install damage caps without changing the constitution and still affords insurance carriers some protection.

Critics said it gives unconstitutional special privileges to doctors and offers no limit on the state’s overall obligation.

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Sen. Jayne Mockler countered that Wyoming’s court system works well and that other solutions are needed to discourage doctors from seeking greener pastures.

Topics Medical Professional Liability