Last month, the National Conference of State Legislators (NCSL) wrote a letter to both the chairman and ranking member of the House Subcommittee on Health expressing “strong, bipartisan opposition to the passage of the latest federal medical malpractice legislation, HR 5, the ‘Help Efficient Accessible, Low-Cost, Timely Healthcare (HEALTH) Act of 2011,’ pending before the U.S. House of Representatives.”
Modeled after the successful reforms contained in California’s Medical Injury Compensation Reform Act of 1975 (MICRA), the HEALTH Act contains a number of reforms considered critical for improving the fairness and efficiency of the medical liability system. These reforms include a $250,000 cap on non-economic damages; collateral source rule reform allowing evidence of outside payments to be made in court; a ban on subrogation by collateral sources; a fee schedule for attorney contingency fees; and periodic payments of future damages.
“Medical malpractice, product liability and other areas of tort reform are areas of law that have been traditionally and successfully regulated by the states,” wrote William Horne, NCSL chairman, in the letter to the House Subcommittee on Health. “Since the country’s inception, states have addressed the myriad of substantive and regulatory issues regarding licensure, insurance, court procedures, victim compensation, civil liability, medical records and related matters. In the past two decades, all states have explored various aspects of medical malpractice and products liability and chosen various means for remedying identified problems. Over the past several years, states have continued to revise and refine their medical malpractice laws and procedures….
“NCSL studied this issue in 2005 when the last iteration of HR 5 was being considered by the U.S. House of Representatives. Our review included assessing whether circumstances had developed, or were so unique, that only federal action could provide an adequate and workable remedy. We again examined recent state actions, policy options and experiences. We discussed at length how various proposed or anticipated pieces of federal legislation fared against NCSL’s core federalism goals. Those questions included: (1) whether preemption is needed to remediate serious conflicts imposing severe burdens on national economic activity; (2) whether preemption is needed to achieve a national objective; and (3) whether the states are unable to correct the problem. The resounding bipartisan conclusion was that federal medical malpractice legislation is unnecessary.”
Federal reform of the country’s medical liability tort system has been a Republican agenda item for years. The HEALTH Act was first introduced in 2005 and passed by the House. It was sponsored in the Senate by Sen. John Ensign, and co-sponsored by five other Republican senators. The legislation ultimately stalled in committee and never became law.
The HEALTH Act of 2011 has been endorsed by the American Medical Association as well as the Physician Insurers Association of America, which represents medical professional liability insurance companies owned and/or operated by healthcare providers.