Pelosi Bill Protects, Aids Trial Lawyers

Friday, 06 Nov 2009 10:22 PM

By David A. Patten

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Buried in the bowels of House Speaker Nancy Pelosi’s 2,000-page healthcare reform bill is a powerful carrot for states that agree to give up on tort reform – and a stick to wallop those that won’t.

Section 2531 of Pelosi’s $1.2 trillion House bill appears to be another example of dangling taxpayer dollars to get states to do what Beltway politicians want.

The provision states that Health and Human Services Secretary Kathleen Sebelius can award an “incentive” in “an amount determined by the secretary” to states that qualify.

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To get the money, states must enact certain measures to help doctors lower their exposure to medical-liability lawsuits.

The catch: The states getting the funds cannot “limit attorneys’ fees or impose caps on damages.” In other words, in a provision that appears to be a blatant curtsy to trial-attorneys, the states can’t enact tort reform.

That measure seems to run counter to the president’s September healthcare address to Congress, when he said: “I don’t believe malpractice reform is a silver bullet. But I have talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs. So I am proposing that we move forward on a range of ideas about how to put patient safety first and let doctors focus on practicing medicine.”

The amount of money awarded is up to the HHS secretary, and total amount to be distributed is a complete wildcard: Although authorized and provided for by law, the funding would depend of future congressional appropriations.

Presumably this excludes the expense form CBO scoring, which would appear to reduce the bill’s overall impact on the budget deficit.

To receive the funds, states would need to enact medical liability “alternatives” that do not include actual tort reform. These could include improvements in dispute resolution to avoid high-dollar malpractice verdicts; allowances for doctors who make early disclosures of healthcare errors; and systems to ensure “access to affordable liability insurance” for doctors.

James Dolan is president of the Florida Medical Association, which has nudged legislators in the Sunshine State to enact limited tort reforms that have lowered doctors’ premiums, but otherwise haven’t been strong enough to contain costs.

Dolan describes halfway measures sans tort reform as “a head fake.”

“Meaningful tort reform has to be exactly that, or it’s not going to make any difference at all,” he says.

Dolan says he can’t envision the Democratic Party doing anything to disappoint the trial attorneys who have fueled its political campaigns.

“I just don’t see that happening,” he tells Newsmax.

Political analysts generally agree.

Dolan says the attorney lobbies contributed the second most money to Democratic coffers, behind only organized labor.

The Congressional Budget Office has estimated that enacting tort reform – generally defined as new rules limiting how much money juries can award to people who suffer or die due to medical errors – would save up to $54 billion over the next decade. Others say the savings could be nearly five times that much.

Doctors like tort reform because it tends to lower their medical malpractice premiums – a cost often passed along to consumers. It also reduces the incentive to practice what is known as “defensive medicine” – prescribing procedures and tests that aren’t really necessary, but that reduce the chance of medical-malpractice lawsuits. But for trial attorneys, who earn a heft cut of any damages that are awarded, tort reform is about as welcome as the plague.

Darren McKinney, a spokesman for the American Tort Reform Association, tells Newsmax that 25 states have enacted some degree of tort reform. Five states, he says, have adopted provisions that limit or “cap” awards due to medical malpractice.

“This 111th Congress continues to be very friendly to the trial bar,” McKinney observes, “and frequently designs and hides what we call trial lawyer earmarks in any number of bills, and this is yet another example.

“It's bad enough that the legislation, as written in both bodies of Congress so far, fails in any meaningful way to address the issues of medical liability and defensive medicine. But in this case, at least first glance, it seems to go the other way, in discouraging states to under take reforms that have been known to work in any number of states,” he says.

The bottom line: The healthcare reform would use taxpayer dollars to actively discourage healthcare efficiencies that would save taxpayers money.

That is precisely what section 2351 would do, opponents say. And while states would not be required to nix tort reforms they already have on the books, those states would not be eligible for the federal largess, either.

The law specifies states must adopt their “alternative,” i.e., non-tort reform cost-containment laws after Obamacare is signed into law. It’s biggest impact would appear to be dissuading any more states from enacting tort reform.

Carrot, anyone?

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