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Healthcare and Tort Reform

I have an opinion piece in the December issue of Metropolitan Corporate Counsel that addresses the litigation reform proposal, section 2351, in the House health-care reform bill. In substance, this piece is a more detailed version of my earlier New York Post op-ed on the subject, already linked by Walter here.

In this newer column, I note that "president's call for demonstration projects that try new ideas is welcome"; even though damage caps and other "traditional" tort reforms have been proven effective at lowering costs, other yet-untried reforms might do even more on that front -- and could also do more to "reduc[e] the time it takes to receive compensation from injury, weed[] out bad suits, and reach[] determinations on questions of negligence and causation more based on science than jury sympathy." E.g.,

The Manhattan Institute has called for changing the way the legal system handles settlements and attorney fees - through early-offer systems and offer-of-judgment reforms - that would reduce the incidence of weak suits (and improve compensation for high-quality, low-value claims). Public health researchers at Harvard have echoed Covington & Burling's Philip Howard in arguing for specialized health courts that take medical malpractice out of the traditional civil courts altogether.

Unfortunately, as we have documented on this site, the Pelosi bill "is more geared toward protecting the trial bar's interests than in giving real alternatives a try":

The bill authorizes funding for "early offer" reforms, but its restrictions on damage- and fee-limitations would preclude any workable early-offer ideas, including the Manhattan Institute's suggested reforms and alternative ideas developed by University of Virginia torts professor Jeffrey O'Connell. The bill has no provision to encourage health courts at all.

Instead, what the bill offers to fund are merely "certificate of merit" proposals, Section 2351(a)(4)(A). Although such proposals can help to weed out bad lawsuits - particularly if legislation calls for panels with robust authority to screen claims - in practice, certificate-of-merit reforms often amount to little more than requiring that a plaintiffs' lawyer obtain an affidavit from a doctor before proceeding to discovery. Since any decent med-mal claim requires expert witness testimony anyway, such reforms do very little indeed, which is why even plaintiffs' lawyer John Edwards embraced them as a presidential candidate.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.