Overview
- Over the years, Congress has considered various measures under the label of “tort reform” that are opposed by the ABA because they would impede access to the civil justice system and interfere with the ability of victims to obtain redress. These include proposals to:
- require the losing party in litigation to pay the winner’s fees and costs;
- cap or prohibit recovery of noneconomic damages;
- limit recovery of plaintiffs’ attorney’s fees;
- preempt state medical professional liability laws to cap awards to patients injured by malpractice (click here for more information on the ABA’s position on medical malpractice legislation);
- require aggrieved patients to utilize “health court tribunals,” which would deprive them of their right to an impartial jury trial; and
- limit class actions (click here for a list of ABA policy regarding Class Actions).
ABA Recommendations
In 1987, the ABA released a “report of the action commission to improve the tort liability system.” The report recommends no ceilings on pain and suffering damages, but instead urges trial and appellate courts to make greater use of the power of remittitur or additur with reference to verdicts that are so excessive or inadequate they are clearly disproportionate to community expectations. The report also states that: tort award commissions should be established to review awards during the preceding year, publish information on trends, and suggest guidelines for future trial court reference; juries should be given more guidance on the appropriate range of damages to be awarded for pain and suffering in a particular case; and the scope of punitive damages should be narrowed by addressing the standard of conduct, standard of proof and other pretrial procedures designed to weed out frivolous claims for punitive damages.
115th Congress
The ABA opposes several bills pending in the 115th Congress including H.R. 720, the Lawsuit Abuse Reduction Act of 2017 and H.R. 1215, the Protecting Access to Care Act of 2017. We also oppose the class action reform provisions in H.R. 985, the Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2017. H.R. 720 passed the House on March 10 230-188 with 5 republicans voting against. H.R. 985 passed the House on March 13 220-201 with 14 republicans voting against. Both H.R. 720 and H.R. 985 are currently pending in the Senate Judiciary Committee. H.R. 1215 passed out of the House Judiciary Committee on March 22 by a vote of 19-18. Two republicans, Representatives Poe and Gohmert, spoke against the bill on federalism grounds but only Representative Poe ended up voting against it so it passed out of Committee by one vote. We expect H.R. 1215 to be considered on the House Floor before the August recess. We support legal reforms in the area of workers’ compensation and we expect reintroduction of legislation commonly referred to as the “Medicare Set-Aside” bill that would make the settlement process more efficient for injured workers and insurers.
114th Congress
The ABA opposed several bills pending in the 114th Congress under the guise of “tort reform” including H.R. 758/S. 401, the Lawsuit Abuse Reduction Act; H.R. 1927, the Fairness in Class Action Litigation Act; and H.R. 4771, the Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2016. H.R. 758 passed the House on September 17 and is currently pending in the Senate Judiciary Committee. H.R. 1927 passed the House on January 8 and is also awaiting action in the Senate Judiciary Committee. The House Judiciary Committee began a markup of H.R. 4771, but did not vote it out of committee. The ABA supports legal reform that would help injured workers settle their compensation claims. Corrective legislation has been introduced in the House and Senate that would help injured workers finalize their claims in a more timely and efficient manner. We urged swift passage of H.R. 2649 and S. 1514 but neither bill came up for a vote.
Studies Rebutting Tort Reform Proponents
“Americans for Insurance Reform released studies based on recent insurance data; written by J. Robert Hunter, Consumer Federation of America Director of Insurance and Jane Doroshow, Executive Director, Center for Justice & Democracy at New York Law School.
They rebut assertions that doctors’ malpractice insurance rates are at crisis levels and caps will fix these problems. (News release here. Summary of findings here.)
The studies show that premiums and claims for doctors are the lowest they have been in four decades, and doctors’ rates are actually higher in states that have enacted “caps” and other “tort reforms.”
Given the controversial nature of federal tort reform (including strong opposition from some states’ rights conservatives), there is no justification for including such measures in any possible repeal/replace efforts."
For more on Tort Reform and how it affects lawyers, see the book Tort Reform, Plaintiffs’ Lawyers, and Access to Justice.
Medicare Set-Aside Process
One area of so called “legal reform” that the ABA supports is legislation that would make the Medicare Set-Aside process more efficient. A Medicare Set-Aside agreement allocates a portion of a workers’ compensation settlement to pay for future medical services related to the workers compensation injury. The ABA strongly supports the establishment of a predictable and efficient set-aside approval process that also provides reasonable protection for injured workers and Medicare. The ABA urges Congress to enact legislation that:
- establish clear criteria for when a set-aside may be reviewed by the Center for Medicaid and Medicare Services,
- establish an appeal procedure if the parties dispute the CMS ruling regarding the allocation of settlement proceeds, and
- provide an optional, direct payment of set-aside amounts to Medicare.
Key Points
- Preserve access to our civil justice system by opposing measures that would restrict the ability of victims to seek redress in court. Several legislative proposals would restrict access to justice by interfering with evidentiary and procedural standards. Such artificial restrictions place increasing burdens on victims and their lawyers to access the civil justice system individually or as part of a class.
- The ABA supports measures to increase efficiency in our court system, but we oppose measures that would limit access to the civil justice system by interfering with the process set forth in the Rules Enabling Act. Strong measures are in place to screen out so called “frivolous” law suits but if these measures can be enhanced, such proposals should be addressed by current procedures set forth by Congress.
- The ABA urges House and Senate members to oppose measures that would inhibit the ability of victims to seek compensation for their harms in court. The ABA supports reforms that would help injured workers settle their claims in a more efficient manner. The Medicare Secondary Payer and Workers’ Compensation Settlement Agreements Act of 2015 (H.R. 2649/S. 1514) would benefit employers, insurers, and injured workers by establishing a predictable and efficient set-aside approval process that offers reasonable protection for injured workers and Medicare.
Resources
Medicare Secondary-Payer One Pager
G.O.P. Bill Would Make Medical Malpractice Suits Harder to Win - New York Times
Op Ed: How the GOP’s ‘Access to Care’ bill cuts down states’ rights
ABA Correspondence
115th Congress
June 12, 2017 ABA Letter Expressing Concerns Regarding HR 1215, the Protecting Access to Care Act
March 7, 2017 ABA Letter Opposing HR 720, the Lawsuit Abuse Reduction Act
March 6, 2017 ABA Letter Opposing HR 985, the Fairness in Class Action Litigation Act of 2017
February 27, 2017 ABA Letter Opposing HR 1215, the Protecting Access to Care Act of 2017
February 14, 2017 ABA Letter Opposing HR 985, the Fairness in Class Action Litigation Act of 2017
On February 1, 2017 ABA Letter Expressing Opposition to HR 720, the Lawsuit Abuse Reduction Act of 2017
114th Congress
ABA letter to the Chair and Ranking Member of the House Judiciary Committee’s Subcommittee on the Constitution and Civil Justice opposing the Lawsuit Abuse Reduction Act of 2015.
ABA letter to the Chair and ranking member of the House Committee on the Judiciary opposing the Lawsuit Abuse Reduction Act.
ABA letter to the Chairman and Ranking Member of the House Committee on Ways and Means and the Senate Committee on Finance urging the swift passage of the Medicare Secondary Payer and Workers' Compensation Settlement Agreements Act of 2015.
ABA letter to Representative Bob Goodlatte, Chairman of the House Judiciary Committee, opposing H.R. 1927, the Fairness in Class Action Litigation Act of 2015.
ABA comments to the Department of Health and Human Services’ Centers for Medicare & Medicaid Services urging it to modify its proposed rule establishing new requirements for long-term care facilities.
113th Congress
ABA Letter commending the introduction of S. 2731 to reform the administration of the Medicare Secondary Payer provisions of federal law in cases involving Workers’ Compensation settlements.
ABA Letter opposing the Lawsuit Abuse Reduction Act of 2013.
Additional Resources
List of ABA policy regarding Class Actions
More information on the ABA’s position on Medical Malpractice Legislation.