Friday, November 13, 2009

Tort reform in the health care bill

The ABA is reporting today that the health bill sponsored by House Speaker Nancy Pelosi has a provision that discourages caps on damages and attorney fees, but that the bill encourages a requirement that victims obtain a certificate of merit from an expert before suing and the enactment of rules to require "early offers" designed to encourage settlements. These are all awful alternatives, but insurance companies should be happy with Pelosi's choice. Talk about a case of "choose your poison"! Let me start with the basics. Anything with the label "tort reform" is looking to do one of two things: either to make it more difficult for victims to get compensation (by making it more difficult for them to get to court) or, if they can get compensation, to reduce how much they can recover. Caps on damages are examples of the latter approach to reform; requiring a certificate of merit is an example of the former. I am torn about which choice would be worse, but am leaning towards saying that caps are better (or, less bad, I guess) for consumers. I would prefer to see our system continue to work as it always has, but if I absolutely had to choose, I think I would vote for caps on damages before certificates of merit. With the cap, at least the victim does get some compensation and, as long as the cap is generous, many plaintiffs may not be affected. Of course, those who would be affected would be precisely those who need the compensation the most - those who suffer catastrophic injuries - but I as I said, I am being forced to choose between bad choices and with this one at least the victims get a chance to get something. In contrast, the approaches to reform that seek to make it more difficult for victims to find representation, to find expert witnesses willing to certify their claims, and to make it more difficult to file claims to begin with, if successful, leave the victims with no recourse and no recovery at all. On the other hand, if a cap is particularly low, it would be just as effective as any other measure in making it difficult for victims to find representation. So, again, pick your poison! Here is a link to an article that talks about how the number of medical malpractice lawsuits is going down, although not necesssarily for the right reasons.

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