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House Malpractice Reform Bill Stalled Over Constitutionality of Damage Caps

The Hill “Healthwatch” blog reported the House Judiciary Committee “delayed markup of the tort reform bill until next week to consider whether the legislation would clash with state constitutions that forbid medical malpractice caps.” Tea Party Caucus member Rep. Ted Poe objected to the bill because he said malpractice damage caps violate the Constitution.

Modern Healthcare reported objections to the constitutionality of damage caps were raised by Democrats. Democratic Rep. Mel Watt said, “We’re trying to federalize something that shouldn’t be federalized. … Instead, he suggested limiting the bill to cases brought involving care funded by federal healthcare programs.” Committee chair Rep. Lamar Smith “agreed to work with both Republicans and Democrats to address the underlying issue of states’ rights, as well as possibility of indexing the cap to inflation, before the full House considers the measure.” Noting President Obama’s call for malpractice reform, Smith said, “Let’s give the president something to consider by favorably reporting out this legislation.”

Politico reported Poe, along with fellow Texas Rep. Louie Gohmert were specifically concerned the bill might override Texas’ own $250,000 damage cap. Citing the 10th Amendment’s Commerce Clause, Poe said, “I believe that each individual state should allow the people of that state to decide – not the federal government.” Smith aides noted the bill is “aimed at states that don’t have tort reform laws of their own – not at the ones that already have limits in place.” In a statement, Smith said he “didn’t foresee any problems” in getting the bill to the floor and completing the markup next week. The session also included the defeat of seven Democratic amendments, including measures allowing greater damages for “intentional misconduct” and harsher punitive damages for faulty medical products.

Gingrey push for malpractice reform rooted in personal experience. The New York Times reported Rep. Phil Gingrey affirmed his support for GOP malpractice reform legislation in a statement saying, “Too often our medical liability system benefits third parties over patients, allowing investors and law firms to reap huge percentages of rewards instead of the injured parties who need them most.” Gingrey, an obstetrician, has been involved in at least three malpractice suits. The bill, which would “restrict fees paid to lawyers representing patients and create alternative means to lawsuits for resolving medical disputes,” is opposed by the American Association for Justice. It also seeks to prohibit punitive damage awards “in cases brought against manufacturers of drugs, medical devices and other products that are approved, cleared or licensed for sale by the Food and Drug Administration.”

The Atlanta Journal-Constitution reported, “Gingrey’s personal experience isn’t what ultimately drove him to sponsor legislation last month … — but his firsthand knowledge of malpractice suits did factor into his decision,” according to his spokeswoman. Brooke Sammon explained, “Because he has an acute awareness of the issues within the system and need for reform, he understands the need for liability reform.” The latest suit was filed in 2002 by “a Georgia woman who claimed she lost her 15-week-old fetus after Gingrey and two other obstetricians he worked with failed to properly diagnose the woman’s appendicitis.” Gingrey is co-sponsoring the bill with Reps. Lamar Smith and David Scott.

Judge rebuts Gingrey, suggests malpractice premium caps instead. In a Huffington Post commentary, retired Federal Judge H. Lee Sarokin questioned Gingrey’s justification for malpractice reform and questioned the circumstances under which those with legitimate claims should be punished “because others have filed frivolous ones.” Sarokin proposed reform requiring at-fault doctors to pay a victim’s legal fees, responding to Gingrey arguments the current system enables law firms to collect large sums at victims’ expense. This way, Sarokin argued, “The victim will receive full recovery.” He also suggested capping malpractice premiums, rather than unfairly punishing those with legitimate claims. Sarokin noted that courts have the capacity to award damages on a case-by-case basis, as well as necessary checks to address excessive verdicts.

Other reforms offered. Center for Justice and Democracy’s Joanne Doroshow offered reforms to the claims filing process in a Huffington Post commentary. Doroshow learned of enterprise notification while serving on the New York State Governor’s Medical Malpractice Task Force in 2007 and 2008. Proposed by the state’s Academy of Trial Lawyers, enterprise notification allows “the attorney [to] sue the main hospital or individual who seems responsible,” rather than file a suit against all potential defendants. “But if later it’s found that someone else is responsible, bring him or her in at that time.” Doroshow said doctors on the task force were receptive to the idea because it wouldn’t automatically tag them when malpractice suspicions arise. She also affirmed her opposition to the House reform measure and pointed to a Business Insurance article in which American Tort Reform Association General Counsel Victor Schwartz admitted “it is ‘rare or unusual’ for a plaintiff lawyer to bring a frivolous malpractice suit because they are too expensive to bring.”

South Carolina House passes lawsuit reform bill. The State (SC) reported the South Carolina House approved a bill capping punitive lawsuit damages to $350,000 or “three times the amount of a plaintiff’s costs.” The bill would also “limit the fees that could be paid to outside attorneys hired by the Attorney General or solicitors.”

Colorado Senate committee votes to end pain and suffering damage caps. The Denver Post reported Colorado’s Senate Judiciary Committee approved a bill ending damage caps for pain and suffering “in accidents caused by impaired drivers.” Tammy Lovejoy Teixeira, the mother of a drunken-driving victim told the committee “the drunk driver must be held accountable for the emotional damage sustained by the victims.” Opponents of the bill, which passed on a 6-3 vote, argued it would reverse parts of the state’s 25-year-old tort measure, “and would be a boon for personal-injury attorneys.”

From the American Association for Justice news release.

Bob Kraft

I am a Dallas, Texas lawyer who has had the privilege of helping thousands of clients since 1971 in the areas of Personal Injury law and Social Security Disability.

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The title of this blog reflects my attitude toward those government agencies and insurance companies that routinely mistreat injured or disabled people. As a Dallas, Texas lawyer, I've spent more than 45 years trying to help those poor folk, and I have been frustrated daily by the actions of the people on the other side of their claims. (Sorry if I offended you...)

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