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Medical malpractice reform omitted from House health care bill

The lack of medical liability reform in the House health care bill and the political power of trial lawyers were two points argued late Saturday when Republicans moved to recommit the health care bill, H.R. 3962, to committee. A motion to recommit is one of the last procedural moves often used by the minority to highlight a bill's failings.

The Republican whip, Rep. Eric Cantor (R-VA), said:

Mr. CANTOR. Mr. Speaker, any physician in America will tell you that the simplest way to reduce health care costs is to enact real medical liability reform. The fear of being sued by opportunistic trial lawyers is pervasive in the practice of medicine. Our system wastes billions on defensive medicine that should be going to patient care.

That's why real medical liability reform is needed. In fact, CBO estimates that as much as $54 billion can be saved by the Federal Government alone. It is totally unacceptable that this money is being spent in the courtroom instead of the operating room. At the same time, the majority has promised the American people that their health care bill will lower costs, yet the bill before us today, Mr. Speaker, contains no medical liability reforms. And why not? The truth comes from one of the Democrats' own, no less than former DNC Chair and physician Howard Dean, who said last August, The reason that tort reform is not in the bill is because the people that wrote it did not want to take on the trial lawyers in addition to everybody else they were taking on, and that is the plain and simple truth.

Responding for the Democrats was Rep. Bruce Braley of Iowa.

Mr. Speaker, during this entire health care debate, we've heard a lot from our friends on the other side of the aisle about something called medical liability reform, but all day as they've been talking about this point, you have not heard one word about patient safety. If you want to talk about real meaningful health care reform, it's important to talk about the most critical aspect of true, meaningful health care reform-- standing up for patients. Who will speak for the patients?

As Ramesh Ponnuru of National Review notes, Braley is the former president of the Iowa Trial Lawyers Association; he was also a board member of the Association of Trial Lawyers of America, now AAJ. Braley's emphasis on patient rights and medical errors is the same argument AAJ uses against tort reform.

The motion to recommit failed 187-247. The motion contained instructions on Medicare and liability reform, which you can read on Page H2963 of The Congressional Record. For the floor remarks cited above, see Page H21966.

UPDATE (1:10 p.m.): Doing a little more reading, we find a prescient Ted Frank's commentary about the 2006 Congressional race in Iowa posted on Nov. 1, 2006:

The House race where liability issues come up strongest is Iowa's open First Congressional District (vacated by Jim Nussle, running for governor) where Republican Mike Whalen is running against Iowa Trial Lawyers Association president Bruce Braley. Whalen's advertising calls Braley a "greedy trial lawyer" and criticizes his ties to ATLA and some of his cases directly. Braley wrote a 1998 op-ed defending the result in the infamous McDonald's coffee case, and that's been used against him, too. This is a change of pace from the quieter Republican hands-off approach against John Edwards's record in 2004, though that might just be because voters do not care much about VP candidates. Reuters has Braley up by seven points; lefty bloggers have rehashed ATLA talking points in defending Braley, but Braley himself largely ignores the liability reform issue, though that won't be the case when he's in Congress.

No indeed.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.