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Senate health care bill provides more detail about liability grants

UPDATE I now see Walter already reported at Overlawyered an observer's analysis of the language, finding it a "grant program run by trial lawyers for the benefit of trial lawyers." A much more detailed dissection of the language than what's below.

The manager's amendment to the Senate health care bill, available here as a .pdf file, proposes actual statutory language for federal grants to states to establish demonstration projects on medical liability. The provisions run from page 344 to 359: "SEC. 399V-4. STATE DEMONSTRATION PROGRAMS TO EVALUATE ALTERNATIVES TO CURRENT MEDICAL TORT LITIGATION."

The previous versions of the bill had simple "Sense of the Senate" language that only suggested federal support for demonstration projects. The new amendment is much more detailed and authorizes $50 million over five years, beginning in Fiscal Year 2011 (Page 358).

There certainly are many provisions that would favor participation in the demonstrations by the plaintiffs' bar, including the targeting of medical errors, which is the gist of AAJ's latest arguments against medical liability reform. However, while setting many requirements and preferences, the amendment does not rule out participation by states that have capped non-economic damages.

We've put the requirements for state participation in the extended entry.

'(2) ALTERNATIVE TO CURRENT TORT LITIGATION.--Each State desiring a grant under subsection (a) shall demonstrate how the proposed alternative described in paragraph (1)(A)--''(A) makes the medical liability system more reliable by increasing the availability of prompt and fair resolution of disputes;
''(B) encourages the efficient resolution of disputes;
''(C) encourages the disclosure of health care errors;
''(D) enhances patient safety by detecting, analyzing, and helping to reduce medical errors and adverse events;
''(E) improves access to liability insurance;
''(F) fully informs patients about the differences in the alternative and current tort litigation;
''(G) provides patients the ability to opt out of or voluntarily withdraw from participating in the alternative at any time and to pursue other options, including litigation, outside the alternative;
''(H) would not conflict with State law at the time of the application in a way that would
prohibit the adoption of an alternative to current tort litigation; and
''(I) would not limit or curtail a patient's existing legal rights, ability to file a claim in or access a State's legal system, or otherwise abrogate a patient's ability to file a medical malpractice claim.

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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.