April 01, 2012

ABA reiterates opposition to medical liability proposals

The ABA last month reiterated its opposition to provisions in Title I of current medical liability legislation that would cap noneconomic damages that a plaintiff in a health care lawsuit could recover.

H.R. 5, which passed the House March 22 by a 223-181 vote, would limit noneconomic damages to $250,000 and cap punitive damages to two times the amount of economic damages or $250,000, whichever is greater. It also would preempt existing state laws on proportionate liability, allow courts to reduce contingent fees, and abolish the collateral source rule.

In a March 19 letter to all members of the House, ABA Governmental Affairs Director Thomas M. Susman reiterated the association’s doubts about potential savings from enactment of the legislation that the Congressional Budget Office (CBO) projected in 2009. He wrote that the ABA Standing Committee on Governmental Affairs reviewed the CBO conclusions and found that the CBO selectively relied on some studies that addressed only one side of the tort reform argument and misconstrued the conclusions of some of the studies cited.

The ABA committee, which conveyed its concerns to the CBO at the time, concluded that “on the whole, the results regarding potential savings through tort reform are ambiguous at best.”

Susman emphasized that the ABA remains committed to maintaining a fair and efficient system of justice where victims of medical malpractice can obtain redress based on state laws. He added that the states, because of the historic role they have played, remain the repositories of experience and expertise in these matters.

“Congress should not substitute its judgment, as it does in Title I of H.R. 5, for the systems that have thoughtfully evolved in each state over time,” he concluded.

Susman also noted that the ABA has no position on Title II of the bill, which would repeal the Medicare Independent Payment Advisory Board (IPAB) created in 2010 by the Patient Protection and Affordable Care Act.  The IPAB has the authority to recommend proposals to Congress for reducing Medicare spending.

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