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National debt commission recommends medical liability reform

Released today, "The Moment of Truth: Report of the National Commission on Fiscal Responsibility and Reform," includes specific recommendations for medical liability reform. A one- to three-year statutes of limitation and replacing joint-and-several liability with a "fair share" rule? That's substantive.

The recommendations come under Section III, Health Care Savings:

3.12 Medical malpractice reform.
(Saves $2 billion in 2015, $17 billion through 2020)
Most experts agree that the current tort system in the United States leads to an increase in health care costs. This is true both because of direct costs - higher malpractice insurance premiums - and indirect costs in the form of over-utilization of diagnostic and related services (sometimes referred to as "defensive medicine"). The Commission recommends an aggressive set of reforms to the tort system.

Among the policies pursued, the following should be included: 1) Modifying the "collateral source" rule to allow outside sources of income collected as a result of an injury (for example workers' compensation benefits or insurance benefits) to be considered in deciding awards; 2) Imposing a statute of limitations - perhaps one to three years - on medical malpractice lawsuits; 3) Replacing joint-and-several liability with a fair-share rule, under which a defendant in a lawsuit would be liable only for the percentage of the final award that was equal to his or her share of responsibility for the injury; 4) Creating specialized "health courts" for medical malpractice lawsuits; and 5) Allowing "safe haven" rules for providers who follow best practices of care.

Many members of the Commission also believe that we should impose statutory caps on punitive and non-economic damages, and we recommend that Congress consider this approach and evaluate its impact.

UPDATE (1:40 p.m.): A quick response from the American Association for Justice condemns the radical proposals and dangerous ideas. Or is it dangerous proposals and radical ideas?

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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.