In the background of a chaotic legislative session, several bills designed to strengthen legal protections for medical providers, health care systems and insurance companies faced with malpractice claims are sailing smoothly through committee votes and floor debates on their way to the governor’s desk.
The proposed changes to Montana’s malpractice legal landscape are backed by powerful players in the health care industry, reports the Montana Free Press. One of the most prominent measures would stop medical malpractice cases and insurance payouts from being automatically reported to the state licensure board. Another would limit how juries can assess damages in malpractice cases.
Another bill aims to prevent the Montana Supreme Court from finding the state’s $250,000 cap for non-economic damages in malpractice cases — one of the lowest limits in the country — unconstitutional.
The proposals would alter the state’s complex legal framework of health care oversight and recourse for injured patients. But they have received little to no public testimony from people outside the health care or legal fields during the first two months of hearings. Proponents have argued the legislation will help hospitals and providers weather expensive malpractice lawsuits and cut unnecessary bureaucratic oversight processes.
In a legislative session filled with lightning-rod issues — including property tax reform and Medicaid expansion — the industry-backed medical malpractice bills have mostly flown under the radar. A major exception has been bills that make it easier to sue doctors who provide gender transition-related care for trans minors and add a 25-year statute of limitations to pursue damages, proposals that have advanced despite receiving vocal opposition from members of the public and health industry advocates.
The other, lesser-known bills could bring about far-reaching consequences for health care oversight in Montana and patients seeking remedies for medical damages.
CLOSING A ROUTE FOR LICENSE COMPLAINTS
The Montana Medical Legal Panel (MMLP), a group of providers and lawyers convened by the Montana Medical Association, is the first step required by law for medical malpractice cases.
There, patients, providers and insurance companies appeal to panelists to determine whether the case could indicate malpractice or patient injury, though the findings don’t prevent a person from suing later in district court or agreeing to an out-of-court settlement. Over the last decade of cases from 2014 to 2023, the panel reports receiving an average of 215 complaints per year. An annual average of 18% of those claims proceed to a lawsuit.
Separately, state licensing boards oversee the professional licenses of medical practitioners. Those boards investigate claims of unprofessional conduct and can suspend or rescind a person’s license. The state Board of Medical Examiners, which monitors the licenses of more than 16,000 physicians, physician assistants and other Montana health professionals, took adverse action against six licenses in 2023, the most recent year for which data is available.
By law, the two avenues for oversight converge only briefly after the MMLP makes a decision. A copy of that finding must be shared with the professional licensing board, which can choose to investigate further if it sees fit.
House Bill 442 would strike that mandatory referral from state law. The legislation, sponsored by Rep. Valerie Moore, R-Plentywood, would also repeal a legal requirement that insurance companies report medical negligence claims and settlements to licensing boards.
Republican Gov. Greg Gianforte’s commissioner of the Department of Labor and Industry, which oversees the Board of Medical Examiners and other medical licensing boards, testified in favor of the proposal, describing it as a way to cut unnecessary procedures and clear out red tape.
“Unnecessary complaints are a regulatory burden that we don’t need,” Commissioner Sarah Swanson said during a February committee hearing for HB 442, arguing that the referral system was “redundant and duplicative,” despite the two groups serving different oversight purposes.
Another bill proponent, a hospital administrator, said the change would protect providers from being dragged through licensure investigations when someone files a frivolous malpractice complaint.
“This type of automatic escalation does not serve patients, providers or the licensing system well,” said Nick Dirkes, the administrator at Frances Mahon Deaconess Hospital in Glasgow.
But other doctors involved in the oversight process have voiced misgivings about the proposed changes, though not through testimony before lawmakers.
During a January meeting of the Board of Medical Examiners, one member said he was considering testifying about HB 442, though as a private citizen rather than as a board member.
“By removing that requirement, it may delay the board being aware of and processing malpractice actions and substandard care by years,” said Dr. James Guyer, a family medicine practitioner from Billings, in comments to other board members. “And we’ve seen that. We’ve seen cases that come up eight years after [the] initial injury.”
Guyer did not testify during the bill hearing last month before the House Business and Labor Committee and did not reply to an emailed request for comment from Montana Free Press about his personal stance on the bill.
Without hearing from any opponents, the committee passed the bill unanimously. It cleared the House chamber in late February by a 97-2 margin.
After supporting the end to automatic referrals, Swanson appeared before the same committee again in February to propose opening a route for license complaints when former patients have already settled a malpractice claim.
House Bill 563 prohibits malpractice settlements from dissuading or prohibiting licensure complaints. Backers say it will allow former patients to seek professional accountability for a medical provider in addition to financial damages.
Swanson and her staff told the legislative committee that the idea behind the bill originally received pushback from hospital and insurance lawyers. She maintained that HB 563 would help licensure boards protect the public from bad actors.
“This is part of what makes [HB 442] OK,” testified Quinlan O’Connor, a labor department attorney, referencing the earlier bill to strike reporting requirements for the MMLP. “We’re gonna get it from people who are individually hurt. We don’t need somebody else reporting it to us.”
CHANGES TO ‘THE CAP’ FOR MALPRACTICE DAMAGES
Another proposal en route to Gianforte’s desk would gradually increase the state’s $250,000 cap on non-economic damages in medical malpractice cases over the next four years and create an inflationary increase after that.
Critics of the cap, which has been in place since the 1990s, have long said that it is unconstitutional to limit how much juries are able to award claimants for emotional pain and suffering. Economic damages, such as medical bills and lost future wages, remain uncapped in Montana, creating a system that some plaintiff’s attorneys say allows wealthy claimants to recoup more for medical injuries than low-income people.
But the constitutionality of the cap has never received a legal determination from Montana courts. Cases that have gotten close to the question in recent years have ended in settlements. Jurors are not allowed to know that the non-economic damages they award are subject to a cap.
House Bill 195, sponsored by Rep. Bill Mercer, R-Billings, would increase the non-economic damages cap to $500,000 by 2029 in an effort to account for inflation. The bill was originally drafted by the Montana Medical Association, according to the public bill drafting file, with input from other health care industry lobbyists and defense attorneys.
Mercer, a private practice attorney who has defended health care entities, told MTFP his main motivation in bringing the bill is to defend the cap’s legitimacy and avoid it being deemed unconstitutional by state courts.
“The motivation is much more a concern of the medical provider community that they want a viable cap and they’re worried that the cap will be taken down,” Mercer said in an early February interview.
The bill has received broad bipartisan support in recent committee hearings, even as some legislators maintain that any cap violates Montanans’ right to recoup damages and have a fair jury trial.
“If you have a jury who heard all of the facts, heard all of the damages and decided to award more than this amount, then their decision is nullified,” said Sen. Andrea Olsen, D-Missoula. “Their time spent, their considerations were overruled.”
Olsen, also a practicing lawyer, ultimately voted in favor of the bill, noting that raising the cap at all was better than keeping it at its current amount.
Another piece of legislation sponsored by Mercer and drafted by the MMA and industry defense attorneys would restrict what juries can be instructed to consider in medical malpractice cases.
The bill is a direct response to a 2023 ruling by the Montana Supreme Court that allowed a jury in a medical malpractice case to consider the risk of procedures when assessing whether a provider exercised adequate caution.
Almost a year after that case, Camen v. Glacier Eye Clinic, P.C., defense attorneys and the Montana Medical Association began drafting legislation to legislatively reverse the Supreme Court finding. As outlined in House Bill 342, juries would be prohibited from calculating malpractice damages based on anything other than the standard of care as described by expert testimony.
In email exchanges attached to the bill drafting file, attorneys for hospitals, medical providers and insurance companies debated the breadth and scope of the possible changes.
“An attempt to fix what our Supreme Court did in Camen with respect to the greater danger/risk = greater care required, is important,” said Sean Goicoechea, a Montana-based attorney who represented Glacier Eye Clinic in the 2023 case, in a message to an attorney for Curi, a major medical insurance company. “However, we all need to understand our Legislature can be a bit unpredictable and, in my opinion, distractible. So, I favor keeping this clean and simple.”
The lawmaker who requested the bill, Rep. Steve Fitzpatrick, R-Great Falls, also an attorney, approved the language near the end of the drafting process.
The bill passed consideration by the House, though by narrower margins than other medical malpractice reform bills. It is now awaiting hearings in the Senate.
