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The Constitutional Basis for Federal Tort Reform in Health Care

By | Briefly Legal, Health Care | No Comments

The House Energy and Commerce Committee this morning is marking up H.R. 5, the Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011, legislation to control the unnecessary or excessive litigation costs that afflict health care in the United States. (Committee video. Hearing started at 10:41 a.m.)

In a timely and important contribution to the debate, the American Tort Reform Association has released a new paper,”The Constitutional Foundation for Federal Medical liability Reform.” In a news release, ATRA explained:

The ATRA paper, The Constitutional Foundation for Federal Medical liability Reform, addresses in some detail questions recently raised about whether provisions of H.R. 5 are consistent with the Commerce Clause, the Tenth Amendment, the guarantees of equal protection and due process, and the right to a jury trial.

“Citing more than 100 years’ worth of Supreme Court precedent, the consistent rejection of federal constitutional challenges to state medical liability reforms, and the opinion of the Congressional Research Service itself,” Joyce said, “our paper puts an end to any serious concern or question about the constitutionality of federal medical liability reform.

“With respect to perhaps the most important question about whether the Commerce Clause gives Congress sufficient authority to promulgate medical liability reform for the nation as a whole, it’s not even a close call. Congress has that authority.

Author of the paper is Mark A. Behrens of Shook, Hardy & Bacon L.L.P., a man who knows his civil liability issues. The National Association of Manufacturers has worked with Behrens and the law firm on numerous occasions over product liability litigation and related issues.

UPDATE (10:45 a.m.): Very timely report. Rep. Tammy Baldwin (D-WI) is making a “states rights” argument against the bill, proposing an amendment. She’s always been such a strong advocate for federalism.

Things to Check Out in Wisconsin, Mr. President: Liability Reform

By | Briefly Legal, Economy | One Comment

President Obama spoke a sentence in general, theoretical support of medical liability reform in his State of the Union address Tuesday, saying, “Still, I’m willing to look at other ideas to bring down costs, including one that Republicans suggested last year — medical malpractice reform to rein in frivolous lawsuits.”

Since you’re in Wisconsin today, Mr. President, we respectfully suggest you look at Senate Bill 1 of the special session of the Legislature. It’s a comprehensive liability reform bill that includes provisions to discourage frivolous lawsuits and punitive damages in malpractice suits. The bill has passed both houses of the Legislature and is on Gov. Scott Walker’s desk for his signature.

From  a statement on the bill by Wisconsin Manufacturers and Commerce, the state manufacturing association.

 “The swift, decisive action on common sense legal reforms is sending a message from Platteville to Wall Street that Wisconsin is open for business,” said James A. Buchen, WMC vice president of government relations. “With other states raising taxes, and passing other anti-business legislation, Wisconsin can stand apart and encourage businesses to create jobs.

The Studies May Be OK, but They’re Not Really Medical Tort Reform

By | Briefly Legal, Health Care | One Comment

Secretary of Health and Human Services Kathleen Sebelius on Friday announced the recipients of a total of $25 million in federal grants to study patient safety and medical liability, a program the Administration cites to claim its health care initiatives include medical liability reform.

At the White House blog, Dr. Ezekiel J. Emanuel, a special adviser for health policy in the Office of Management and Budget, described the thrust of the grants. From “An Important Step on Medical Malpractice Reform“:

The 20 grants awarded today by the Agency for Healthcare Research and Quality (AHRQ) are an important step in the right direction. They will fund programs that aim to reduce avoidable injuries. For instance, one program in Massachusetts aims to reduce errors in primary care physician offices, particularly concerning medications and referrals. Another in Minnesota targets patient safety around childbirth by instituting best practices at 16 hospitals statewide and determining if there is a correlation between fewer complications in childbirth and malpractice suits targeted at obstetricians. A third, in Oregon, will develop and work to implement a “safe harbor” system in which physicians who prove they adhered to evidence based guidelines are protected from frivolous lawsuits.

Best practices, improved sharing of information, additional data collection — all fine. But in most cases, doctors are already doing their best to provide good care to their patients and avoid getting sued. There’s little if anything in these grants that will change that.

Philip K. Howard, chairman of the legal reform coalition Common Good, explained the problems in a statement following the announcement.

While some of these projects might improve the process when patients are injured by medical error, none of them protects doctors from lawsuits where there were no errors. This unreliability drives defensive medicine. The Department of Health and Human Services is avoiding the reality that a new reliable system of medical justice is needed to end defensive medicine, a practice which contributes to the unsustainable growth in health care costs. The trial lawyers, a major contributor to Congressional campaign coffers, are the only beneficiary of the current system, and Washington appears unwilling to take them on, especially in an election year. We’ll see in the fall elections if voters are still happy to have special interests put ahead of the public interest.

From HHS:

UPDATE (1:10 p.m.): Should have noted that Common Good’s reform of choice is health courts.

Also, background from the White House in September 2009 when the President unveiled his initiative:

In Liability Reform, Respecting Legislatures in Georgia, Texas

By | Briefly Legal, Health Care | No Comments

It’s reassuring to see two state supreme courts uphold the authority of the policy-making branch of government, the legislature, to make policy in the area of civil justice reform. The opinions from Georgia and Texas serve as an implicit rebuke to the Illinois Supreme Court and the ridiculous legal reasoning the majority used in February to strike down the Legislature’s enactment of medical liability reforms.

On Monday,  the Georgia Supreme Court upheld the provisions of the 2005 tort reform package that limited liability for emergency room medical personnel. The Insurance Journal reported on the court’s decision in Gliemmo v. Cousineau (opinion): “The 4-3 ruling turned aside complaints that the law is unconstitutional because it gives special liability exemption to emergency medical care providers, despite general laws governing negligence claims that apply to all other health care professionals. The Georgia Constitution prohibits special laws that are not applied uniformly throughout the state and when general laws on the same issue already exist.” The ER Statue limits liability for certain emergency health care providers unless there is “clear and convincing evidence” of gross negligence.

The Texas Supreme Court last Friday unanimously upheld the constitutionality of the state’s 10-year statute of repose on medical liability lawsuits. In the opinion in the case of Methodist Healthcare System of San Antonio et al. v. Rankin, Justice Don Willett wrote that the 2003 law was “a reasonable exercise of the Legislature’s police power to act in the interest of the general welfare.”

Attorney General Greg Abbott applauded the decision in a news release, citing the amicus brief his office had filed: “A decade is a long time to wait for a lawsuit to end – let alone for one to begin.” The brief further explained that “… our legal system does not remedy injuries in perpetuity. Evidence grows stale; eyewitnesses move; records become lost; and parties receive assurances that courts will not reexamine acts from the distant past that have long since faded from memory. The rule of law is served by clear rules – and that includes traditional rules governing the timing of suit.”

Not Much of a ‘Compromise’ on Medical Liability Reform

By | Briefly Legal, Health Care | No Comments

President Obama will unveil the next version of the Administration’s proposal for health care legislation early this afternoon. [1:45 p.m., East Room] Judging by the medical liability section he previewed in a letter to Congressional leadership Tuesday, the differences in the proposals between versions pre- and post-Blair House meeting will be slight.

In September 2009, the President announced a $25 million grant program from Health and Human Services to fund state demonstration programs for “alternatives to the current medical liability system,” paid for by existing agency funds. As written by the Agency for Healthcare Research and Quality, the demonstration projects must address patient safety and risk management AND medical liability. Requiring both elements effectively screens out any serious proposal to cap damages.

In his letter to Congressional leaders, the President said he was open to more, adopting other provisions proposed by Republicans. No. 2 on his list was medical liability reform:

My proposal also included a provision from the Senate health reform bill that authorizes funding to states for demonstrations of alternatives to resolving medical malpractice disputes, including health courts. Last Thursday, we discussed the provision in the bills cosponsored by Senators Coburn and Burr and Representatives Ryan and Nunes (S. 1099) that provides a similar program of grants to states for demonstration projects. Senator Enzi offered a similar proposal in a health insurance reform bill he sponsored in the last Congress. As we discussed, my Administration is already moving forward in funding demonstration projects through the Department of Health and Human Services, and Secretary Sebelius will be awarding $23 million for these grants in the near future. However, in order to advance our shared interest in incentivizing states to explore what works in this arena, I am open to including an appropriation of $50 million in my proposal for additional grants. Currently there is only an authorization, which does not guarantee that the grants will be funded.

Majority Leader Harry Reid’s manager’s amendment version of the health care legislation includes $250 million over five years for the demonstrations. (The section starts on page 344.)

In comparison, in their proposed substitute amendment House Republicans had offered multipoint proposal on liability reform, including:

Sec. 301. Encouraging speedy resolution of claims.
Sec. 302. Compensating patient injury.
Sec. 303. Maximizing patient recovery.
Sec. 304. Additional health benefits.
Sec. 305. Punitive damages.
Sec. 306. Authorization of payment of future damages to claimants in health
care lawsuits.

Thus, the President’s “compromise” on medical liability is to ignore any substantive liability reforms and instead adopt the Senate Democratic majority’s very limited proposal for state demonstration grants. The new element is the President’s state willingness to appropriate money for the program. And that’s it.

Measuring Good-Faith Contributions to Health Care Debate

By | Briefly Legal, Health Care | No Comments

Rep. Darrell Issa (R-CA) in Politico, “Bipartisan health care reform must include tort reform“:

The unsustainable path of rising costs is a serious national problem. Currently, health care spending exceeds $2.5 trillion per year. By 2019, it is expected to top $4.7 trillion per year. Any hope for cost containment would involve comprehensive medical malpractice reform to end the practice of defensive medicine, close the loopholes that allow frivolous lawsuits to clog up the system, and set reasonable limits on jury awards.

Compare that tone to a news release from the American Association for Justice:

“Opponents of reform have repeatedly attacked injured patients and used the malpractice issue to hijack the health care debate,” said AAJ President Anthony Tarricone. “If health care reform makes medicine safer, then fewer patients will need legal recourse – a win for everyone. But it is unconscionable to tell injured patients that they should be left with no recourse if injured through no fault of their own.”

Advocates of tort reform have repeatedly attacked injured patients? That’s just ugly and shameless.

We’ve had a few posts on the medical liability issues involved in health care reform and the Blair House event at Point of Law.com:

Gov. Barbour: You Want a Medical Liability Demonstration Project?

By | Briefly Legal, Health Care | No Comments

Governor Haley Barbour of Mississippi gave the keynote address today at a Heritage Foundation program on state legal reform. While most of his remarks dealt with the legislative strategy for ending lawsuit abuse, he touched on the medical liability in health care being debate at the federal law. Good comments:

It’s mysterious to me that the Administration and the leadership of Congress talk about health care reform and the goal of reducing costs, and yet refuse to put tort reform into the legislation. …

I believe that $200, $250 billion a year of health care costs are caused by litigation. Maybe more than that. But this is the lowest-hanging fruit. This ain’t rocket science. If they want a demonstration project, come on down to Mississippi, I’ll show you a demonstration project. And if it works in the worst state of the country for lawsuit abuse, I promise you it will work in other places too.

The program is available as an .mp3 file.

Tort Reform Pilot Projects? Well, It Would be a Start

By | Briefly Legal, Health Care | No Comments

From last night’s speech:

Now, finally, many in this chamber — particularly on the Republican side of the aisle — have long insisted that reforming our medical malpractice laws can help bring down the cost of health care.  (Applause.)  Now — there you go.  There you go.  Now, I don’t believe malpractice reform is a silver bullet, but I’ve talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs.  (Applause.)  So I’m proposing that we move forward on a range of ideas about how to put patient safety first and let doctors focus on practicing medicine.  (Applause.)  I know that the Bush administration considered authorizing demonstration projects in individual states to test these ideas.  I think it’s a good idea, and I’m directing my Secretary of Health and Human Services to move forward on this initiative today.  (Applause.)
Well, hope so, but it will take changing the minds of some Senators. Sen. Mike Enzi (R-WY), the ranking Republican on the HELP Committee, has pushed for such pilot projects for several years now. But according to his news release from July 9, “Democrats Reject Enzi Proposal to Cut Health Care Costs by Reducing Frivolous Lawsuits.” The amendment tracked with a bill he and Senator Max Baucus (D-MT) introduced in 2007, S. 1481, the Fair and Reliable Medical Justice Act. Which didn’t pass either.

A Demonstration Project for Med-Mal Reform [Ramesh Ponnuru]

Don’t we already have one, called Texas?

Indeed. And it’s worked.