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    Tort reform may finally become reality in 2011


    Bob Gatty
    Washington—Will 2011 be the year that medical malpractice reform becomes a reality? The new political alignment in Congress appears to offer more hope than in many years past, and advocates are anxious to achieve that long-elusive objective.

    The Republicans' avowed goal of dismantling, if not repealing, the Patient Protection and Affordable Care Act offers an opportunity for reform-minded lawmakers to take action, and there are signs that they intend to do exactly that.

    House Republicans identified medical liability reform as one of their legislative priorities following the mid-term elections, which gave them control of that chamber and strengthened their numbers in the Senate. Rep. Phil Gingrey, MD (R-GA), a practicing OB/GYN, has sponsored the Help Efficient, Accessible, Low-cost Timely Healthcare (HEALTH) Act, providing a rallying point for reform advocates and language to be considered as the issue moves forward.

    Reform measure has multiple aspects

    That measure, supported by many physician groups, including the AUA, would:

    • set a statute of limitations of 3 years after the date of manifestation of injury or 1 year after the claimant discovers the injury, with certain exceptions
    • provide for full recovery of economic damages, but limit non-economic damages to $250,000
    • disallow punitive damages unless an actual economic judgment is rendered, and then limit the amount to no greater than twice the economic damages
    • make each party liable only for the amount of damages proportionate to their percentage of responsibility
    • allow courts to control attorney contingency fees, with the percentage going down as the amount of the award increases.

    House Speaker Rep. John Boehner (R-OH) said in his first news conference after being named to the post that the health care reform law needed to be "repealed and replaced with common-sense reforms to bring down the cost of health insurance." But acknowledging that the Senate probably would not accept wholesale repeal, Boehner said he would work to dismantle the law "piece by piece."

    One of those pieces could be the $25 million grant program established to allow states to implement tort reform test programs aimed at reducing the number of medical malpractice lawsuits that are filed. That provision is expected to be squarely targeted by medical liability reform proponents, whose hand has been strengthened by the National Commission on Fiscal Responsibility and Reform, which issued its report in December recommending dramatic steps to curtail federal spending.

    Among its recommendations, the Commission said Congress should enact medical malpractice reform by taking into account outside sources of income when deciding awards; imposing a statute of limitations on medical malpractice lawsuits; replacing joint-and-several liability with a fair-share rule under which a defendant would be liable only for the percentage of the final award equal to his or her share of responsibility; creating specialized "health courts" for medical malpractice lawsuits; and allowing "safe haven" rules for providers who follow best practices of care.

    President Obama himself acknowledged in a speech to the American Medical Association in June 2009 that too many doctors order unnecessary tests and treatments to protect themselves from lawsuits.

    "We need to explore a range of ideas about how to put patient safety first, let doctors focus on practicing medicine, and encourage broader use of evidence-based guidelines," he said.


    Bob Gatty
    Bob Gatty, a former congressional aide, covers news from Washington for Urology Times.


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