The “tort reform” section of Senator Reid’s substitute amendment is not merely meaningless, but is actually a significant giveaway to the trial lawyers. It is essentially a 5-year, 50-million dollar grant program to encourage states to develop more plaintiff-friendly alternatives to the current medical liability system.
Section 10607 (p.344 of the Manager’s) establishes a 5-year grant program. The program is administered by the HHS Secretary (Sebelius), in consultation with a review panel. The review panel is structured to ensure that trial lawyers are amply represented, with seats specifically reserved for “patient advocates,” “attorneys with expertise in representing patients,” and “patient safety experts.”
Grantee states will merely be required to “develop an alternative to current tort litigation” that:
(A) allows for the resolution of disputes over injuries allegedly caused by health care providers or health care organizations; and
(B) promotes a reduction of health care errors by encouraging the collection and analysis of patient safety data related to disputes resolved under subparagraph (A) by organizations that engage in efforts to improve patient safety and the quality of health care.
Nothing about this language requires that the “alternative to litigation” decreases litigation costs. And many of the “patient safety” organizations who will collect data under subsection (B) will likely be trial lawyer ["consumer" or "patient-safety"] front groups…
The conditions tied to the grants ensure that the “alternative to litigation” established under the grants will, in practice, increase doctors’ liability and trial lawyers’ paydays. Most importantly, the grantee-State is required to “provide[] patients the ability to opt out of or voluntarily withdraw from participating in the alternative at any time and to pursue other options, including litigation, outside the alternative . . . .” If the plaintiff has a unilateral right, at any time, to pull out of the “alternative” and pursue litigation, then the “alternative” will only be used when the plaintiff’s lawyer believes that the “alternative” is more plaintiff-friendly than the litigation system.
The demonstration project also cannot “limit or curtail a patient’s existing legal rights, ability to file a claim in or access a State’s legal system, or otherwise abrogate a patient’s ability to file a medical malpractice claim.” This language means that damage caps and statute of limitations reforms would likely be off the table in any “alternative to litigation” established under the grants.
The closest that the bill comes to implying that these “reforms” reduce rather than increase litigation costs is by listing “encouraging the efficient resolution of disputes” and “improv[ing] access to liability insurance” among the goals that grantee-States are supposed to advance. But other goals include “increasing the availability” of dispute resolution, and “the disclosure of health care errors.”
In conclusion, Sen. Reid’s bill spends 50-million taxpayer dollars on a grant program run by trial lawyers for the benefit of trial lawyers. The money will be spent to establish “alternatives to litigation” that are even more lucrative for trial lawyers and costly for doctors than the current broken system.
New from the Manhattan Institute’s 
