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Posted by on Oct 31, 2009 in Health, Politics | 22 comments

So Much for Tort Reform

sharks.gifAs we dig deeper into the behemoth House health care bill, the blatant honesty of Howard Dean shines through the extensive document. You may recall when the former DNC chair said, “the reason why tort reform is not in the bill is because the people who wrote it did not want to take on the trial lawyers in addition to everybody else they were taking on, and that is the plain and simple truth.” Plain and simple indeed, Doctor, and Pelosi’s masterpiece of legislation has delivered on Dean’s promise.

I first saw this item noted by Jennifer Rubin and she quickly sent me scrambling to dig back into the bill. You see, the bill includes one section with the hopeful sounding title, “Medical Liability Alternatives.” (This is section 2531, found on pages 1431 through 1433 of the bill. For the record, if you follow that link you’ll have access to the entire bill, courtesy of the NY Times, in an easily browsed format for those of you who do not wish to download the entire thing in a pdf file.)

From the title and the initial description, you might be tempted to think that the bill was going to address tort reform, at least on some level, by offering an incentive to states who set up alternate methods of handling malpractice litigation.

(1) IN GENERAL. – To the extent and in the amounts made available in advance in appropriations Acts, the Secretary shall make an incentive payment, in an amount determined by the Secretary, to each State that has an alternative medical liability law in compliance with this section.

Sounds good, right? Except, in order for any state to be eligible for the payment, their new law must, as noted, be in compliance with the statute in question. And how does the state make sure their law complies? We find the key portion of that in item 4.

(4) CONTENTS OF ALTERNATIVE MEDICAL LIABILITY LAW. – The contents of an alternative liability law are in accordance with this paragraph if –

(A) the litigation alternatives contined in the law consist of certificate of merit, early offer, or both; and

(B) the law does not limit attorneys’ fees or impose caps on damages.

Did you catch that part? So the federal government will be offering incentive payments to states who engage in tort reform, providing they don’t actually… you know, reform anything to do with the real problem.

I’d like to feign shock over this, but I suppose it was predictable. Howard Dean laid out the ground rules for this game early on and the bill’s authors are following the playbook line for line. Not only will there be no meaningful tort reform, but the bill will provide economic incentives to make sure that no states attempt it.

A pretty sweet deal for the trial lawyers, and it once again demonstrates that their large, collective payments to the Democratic Party were a worthwhile investment.

UPDATE: T-Steel asks a great question in the comments. What if your state already has laws on the books attempting tort reform by limiting payments and fees in these cases? That’s covered in the bill as well. You flat out do not qualify for the federal payments.

(2) DETERMINATION BY SECRETARY – The Secretary shall determine that a State has an alternative medical liability law in compliance with this section if the Secretary is satisfied that –

(A) the State enacted the law after the date of the enactment of this Act and is implementing the law;

So, as you can see, if you already put something on the books to try to deal with it, you are immediately ineligible for the federal payments as long as it remains on the books.