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State’s litigation watchdog calls out two bills in #coleg

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The Colorado Civil Justice League — the state’s self-described “advocate for limiting lawsuit abuse” — has buttonholed a couple of pending legislative proposals it fears will drive more litigation.

The league makes no apologies for being the Capitol’s resident buzzkill on potentially popular legislation that seems to have solid prospects for passage, and these two bills are no exception. In fact, Senate Bill 88 and House Bill 1173 both have bipartisan sponsors, which bodes well for the measures. In the case of SB 88, there’s even a Republican and a Democrat listed as co-lead sponsors in each chamber.

However, as the league points out in a press statement today, its “primary concern with both of these bills is their potential to increase litigation and interference with freedom of contract.”

SB 88 would require a health plan to give notice whenever it bumps a physician or other health care provider out of its network of covered providers. Among its other provisions, the measure also would require health plans to develop and disclose criteria they use to include, exclude and dump doctors and other providers from their networks.

HB 1173 would prohibit an insurance carrier from taking any adverse action against a physician or other health-care provider for expressing disagreement with the carrier’s decisions regarding a patient’s coverage. So, if your doc were to complain, say, to the state insurance commissioner about your insurer’s refusal to cover a test, the insurer under this bill would be barred from taking a counter-step like limiting that doctor’s ability to serve other patients covered in that network.

So, both measures obviously stand to warm the hearts of consumers, but here’s the catch, contends the league: Where such good intentions are legislated on health-care coverage, overeager personal-injury lawyers won’t be far behind. By the lights of the league, both bills invite more lawsuits and pose other hidden hazards:

As introduced, SB 88 restricts freedom of contract between insurers and health care providers by creating additional contractual prohibitions in state statute.  Further, after writing these provisions into statute, the bill defines these contractual violations as “unfair or deceptive trade practice(s)” – akin to false advertising or knowingly making false statements – inviting new opportunities for litigation.  HB 1173 would seem to protect slanderous comments if provided as testimony to a governmental body or as “any other public activity in any forum.”  After inviting new litigation, the bill provides for one-way recovery of court costs and attorney fees (only for a prevailing plaintiff).
CCJL believes that contractual matters between private parties should be resolved privately and disputes resolved by negotiation rather than litigation.
HB 1173 is scheduled for a vote by the full House Friday; SB 88 is headed for a hearing in the Senate Appropriations Committee on Tuesday.

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