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Alaska's tort reform legislation still mired in uncertainty

In the Courts. By Tanya Albert, amednews staff. Oct. 14, 2002.

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A new Alaska Supreme Court decision is a reminder that the road to tort reform isn't a short -- or smooth -- one for physicians.

Getting a state legislature to enact a law that establishes a cap on noneconomic damages awarded in medical malpractice cases is just the first step. Inevitably, the law will be challenged in court.

Alaska is the latest state to see its statute grind through the court process.

On Aug. 30, the state's high court issued a 94-page opinion about reforms the Alaska Legislature passed five years ago. And it still doesn't put one of the biggest questions about the 1997 legislation to rest: Are caps on noneconomic damages -- $400,000 in most cases -- legal under the state constitution?

The majority of the court upheld other parts of the law, including those that shortened the statute of limitations, placed a cap on punitive damages and held physicians and other defendants responsible only for their portion of the damages.

But on the noneconomic cap issue, the court ended up in a 2-2 tie after a fifth justice did not participate in the decision. Under the Alaska court system, the tie means that a lower court decision upholding the caps will stay in place for now. But it isn't a precedent-setting decision.

A definitive answer on noneconomic caps should come next year, said Gary Guarino, the Alaska assistant attorney general who handled the case in which the 2-2 decision was reached.

The case that went before the court and ended in a tie, Evans et al. v. State of Alaska, involved several patients who said they were contemplating filing medical malpractice lawsuits under the new law. They challenged the constitutionality of Alaska's tort reform, claiming that capping damages infringes on their right to a jury trial. [...]