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Voters weigh in on mixed bag of state ballot measures

Californians approve stem cell research, but citizens in four states deliver no clear mandate on tort reform

From the December ACP Observer, copyright 2004 by the American College of Physicians.

By Christine Bahls

In addition to electing a president last month, voters in several states took to the polls to decide a variety of health care-related initiatives, from tort reform to stem cell research to expanding access for the uninsured. And just as the electorate was almost evenly divided on its choice of president, it delivered different verdicts on state ballot initiatives.

While voters in one state approved protections for medical marijuana, for instance, voters in another decided not to expand a medical marijuana law already on that state's books. And voters in four states with ballot initiatives on medical liability sent mixed signals about the need to revamp their state's medical tort system.

Tort reform initiatives

Among the four states—Nevada, Florida, Wyoming and Oregon—with ballot measures related to tort reform, physicians in Nevada fared the best.

Voters there approved removing exceptions to an existing $350,000 state cap on noneconomic damages, a measure supported by physician groups in the state. The measure also revised malpractice payments so providers pay only their share of multiple defendant awards or settlements, and capped administrative costs and attorneys' fees.

Nevada voters also soundly defeated two attorney-backed ballot initiatives. One would have repealed that $350,000 cap if malpractice premiums in the state didn't fall at least 10% within a year, while the other would have fined attorneys who file nuisance suits.

Physicians in Florida also got mostly good news: Voters approved a constitutional amendment capping attorneys' fees in medical liability cases, allowing plaintiffs to keep 70% of the first $250,000 in damages and 90% of any damages awarded over that amount. Physicians in the state lobbied for the amendment, which was sponsored by the Florida Medical Association (FMA).

However, voters also gave a thumbs-up to two attorney-backed initiatives. One that passed by a margin of more than 80% also creates a constitutional amendment, allowing patients to have access to records of medical errors made by physicians.

The other initiative also amends the constitution to allow the state to revoke the license of any physician who loses three medical liability lawsuits. In opposing the initiative, the FMA pointed out that license revocations will not be in effect for physicians with three malpractice settlements. The amendment, which can be enforced retroactively, will force physicians to settle frivolous claims, the FMA has said, to avoid the "three-strikes-you're-out" amendment.

And in Wyoming and Oregon, physician-backed ballot initiatives went down in defeat. Voters in Oregon rejected caps on noneconomic damages in medical liability suits ($500,000) as well as on attorneys' fees.

Wyoming voters failed to approve either of two constitutional amendments supported by physician groups. One would have allowed the state legislature to approve noneconomic damage caps, while the other would have permitted lawmakers to approve legislation calling for a review of malpractice claims before they go to trial or an alternative resolution mechanism.

Stem cell research

In one of the country's most controversial state initiatives, California voters approved spending $3 billion to fund embryonic stem cell research. According to news reports, those funds will far surpass last year's $25 million spending by the National Institutes of Health (NIH) on embryonic stem cell research. (The Nov. 4 New York Times reported that the NIH in 2003 funded $190 million of research on stem cells taken from adult tissue, a process that is not controversial.)

The measure, which may make California the country's center of stem cell research, will establish an institute for regenerative medicine at a state university and raise close to $300 million a year over the next decade through bond sales. The initiative's supporters say it will lead to the growth of a new bioscience industry in the state and will be a boon for academic researchers.

Medical marijuana

Voters in Montana approved a measure to allow residents who are chronically ill to possess and use marijuana for medical purposes. The measure also protects patients' physicians from being arrested or prosecuted for efforts related to medical marijuana use. Montana became the 11th state, nine of which are in the West, to approve marijuana use for medical purposes.

In Oregon, however, voters defeated a measure that would have broadly expanded that state's 1998 medical marijuana law. Under current law, chronically ill residents can grow a limited amount of marijuana for medical purposes.

The measure that was voted down would have increased the amount of marijuana patients could possess, and allowed naturopaths and nurse practitioners to authorize patients' marijuana use. Under current law, only physicians can make that authorization.

Access issues defeated

And in California, voters did not approve two measures that would have extended health care benefits and emergency services to patients who now have problems accessing care.

One narrowly defeated measure failed to uphold a state law requiring employers in the state with 50 or more employees to provide health care coverage to employees by 2007, or pay into a state fund used to provide insurance. The state's "play or pay" law—supported by physician groups—is now repealed.

And voters soundly defeated a measure that would have imposed a telephone bill surcharge to raise funds for emergency services and county trauma centers. According to news reports, many of the state's trauma centers are now closed, unable to meet the needs of a growing number of uninsured patients.

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