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White House: Of course there's tort reform in the health bill

The Obama White House puts to use the WhiteHouse.gov website -- its blog -- to rebuke columnist Charles Krauthammer by name for Krauthammer's column, "Kill the bills. Do health reform right." Krauthammer's case included an argument for step-by-step measures, starting with tort reform:

This is money -- the low-end estimate is about half a trillion per decade -- wasted in two ways. Part is simply hemorrhaged into the legal system to benefit a few jackpot lawsuit winners and an army of extravagantly rich malpractice lawyers such as John Edwards....[snip]

In the 4,000-plus pages of the two bills, there is no tort reform. Indeed, the House bill actually penalizes states that dare "limit attorneys' fees or impose caps on damages." Why? Because, as Howard Dean has openly acknowledged, Democrats don't want "to take on the trial lawyers." What he didn't say -- he didn't need to -- is that they give millions to the Democrats for precisely this kind of protection.

The White House's incoming communications director, Dan Pfeiffer, responds in a blog post, "Reality Check: Column Ignores Facts about Health Reform." On tort reform, he writes:

President Obama issued a Presidential Memorandum directing the Secretary of HHS to move forward with an initiative to give states and health systems the opportunity to apply for medical liability demonstration projects. Section 2531 of the House bill also includes a voluntary state incentive grants program to encourage states to develop alternatives to traditional malpractice litigation.

Yep. And the Senate bill includes a "sense of the Senate" statement expressing some support for state demonstration projects. The legislative provisions and the Administration's $25 million HHS grant program are the bare minimum needed to claim, "There is TOO tort reform in there."

Not that they support it.

In blogging a counter to Krauthammer, the White House has crossed over into territory traditionally left to political parties, surrogates and media allies -- that is, an official rebuttal  to individual journalists not first elicited by a reporter's question. Others took notice:

Gives bloggers something to shoot for.

Section 2531 of the House bill is below:


(a) Incentive Payments for Medical Liability Reform-

(1) IN GENERAL- To the extent and in the amounts made available in advance in appropriations Acts, the Secretary shall make an incentive payment, in an amount determined by the Secretary, to each State that has an alternative medical liability law in compliance with this section.

(2) DETERMINATION BY SECRETARY- The Secretary shall determine that a State has an alternative medical liability law in compliance with this section if the Secretary is satisfied that--

(A) the State enacted the law after the date of the enactment of this Act and is implementing the law;

(B) the law is effective; and

(C) the contents of the law are in accordance with paragraph (4).

(3) CONSIDERATIONS FOR DETERMINING EFFECTIVENESS- In determining whether an alternative medical liability law is effective under paragraph (2)(B), the Secretary shall consider whether the law--

(A) makes the medical liability system more reliable through prevention of, or prompt and fair resolution of, disputes;

(B) encourages the disclosure of health care errors; and

(C) maintains access to affordable liability insurance.

(4) CONTENTS OF ALTERNATIVE MEDICAL LIABILITY LAW- The contents of an alternative liability law are in accordance with this paragraph if--

(A) the litigation alternatives contained in the law consist of certificate of merit, early offer, or both; and

(B) the law does not limit attorneys' fees or impose caps on damages.

(5) NO LIMITATION ON OTHER STATE LAWS- Nothing in this section shall be construed to--

(A) preempt or modify the application of any existing State law that limits attorneys' fees or imposes caps on damages;

(B) impair the authority of a State to establish or implement a law limiting attorneys' fees or imposing caps on damages; or

(C) restrict the eligibility of a State for an incentive payment under this section on the basis of a law described in subparagraph (A) or (B) so long as any such law is not established or implemented as part of the law described in paragraph (4), as determined by the Secretary.

(b) Use of Incentive Payments- Amounts received by a State as an incentive payment under this section shall be used to improve health care in that State.

(c) Technical Assistance- The Secretary may provide technical assistance to the States applying for or receiving an incentive payment under this section.

(d) Reports- Beginning not later than one year after the date of the enactment of this Act, the Secretary shall submit to the Congress an annual report on the progress States have made in enacting and implementing alternative medical liability laws in compliance with this section. Such reports shall contain sufficient documentation regarding the effectiveness of such laws to enable an objective comparative analysis of such laws.

(e) Definition- In this section--

(1) the term `Secretary' means the Secretary of Health and Human Services; and

(2) the term `State' includes the several States, District of Columbia, the Commonwealth of Puerto Rico, and each other territory or possession of the United States.

(f) Authorization of Appropriations- There are authorized to be appropriated to carry out this section such sums as may be necessary, to remain available until expended.

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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.