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Medical liability reform mentioned, in passing, sort of

The President's health care plan posted on the White House website in anticipation of Thursday's Blair House "summit" includes this mention of tort reform in the section, "Title VI. Transparency and Program Integrity":

[The] Act reins in waste, fraud and abuse by imposing tough new disclosure requirements to identify high-risk providers who have defrauded the American taxpayer. It gives states new authority to crack down on providers who have been penalized in one state from setting up in another. And it gives states flexibility to propose tort reforms that address several criteria, including reducing health care errors, enhancing patient safety, encouraging efficient resolution of disputes, and improving access to liability insurance.

That's it. The federal government will grant the states flexibility to propose tort reforms that address several criteria. Awfully decent of you, federal government. Too bad the list of criteria doesn't include "saving costs" or "preventing extortionate lawsuits." But then, the federal grant program now being developed by Health and Human Services specifically precludes any such efforts.

The absence of tort reform came up at the media briefing Monday conducted by White House spokesman Robert Gibbs:

Q No provision that I see here to accommodate the Republicans call for medical malpractice reform.

MR. GIBBS: Well, first and foremost, the President and the Secretary of Health and Human Services use the authority -- regulatory authority that had existed for years to set up demonstration projects in states regarding medical malpractice. And look, Wendell, I think it's an area which will probably be addressed in the very first section of what's discussed on Thursday, and I think the President is anxious to discuss it.

Gibbs said the issue would come up via the GOP proposals, which are posted on the White House site as, "Republican Ideas Included in the President's Proposal." State demonstration grants are mentioned there, too.

In releasing the President's proposal Monday, the White House decided to provide more detail than in the past, falling short of actual legislative language but still substantive enough by usual political and PR standards. Indeed, as the White House states:

Over the past year the House and the Senate have been working on an effort to provide health insurance reform that lowers costs, guarantees choices, and enhances quality health care for all Americans. Building on that year-long effort, the President has now put forth a proposal that incorporates the work the House and the Senate have done and adds additional ideas from Republican members of Congress."

Our emphasis.

The Senate bill did include language on federal grants for states to conduct demonstration grants on medical liability reform. Here's what Anthony Tarricone, president of the American Association for Justice, had to say about those provisions in an e-mail to AAJ's trial lawyer members in December.

While there is a provision for demonstration projects, it provides an absolute opt-out clause for plaintiffs at any time. While some states may embark on demonstration programs we find objectionable, the opt-out provision for plaintiffs minimizes this concern.

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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.