The nation's system for handling medical liability lawsuits is badly in need of an overhaul. So it's disappointing that tort reform legislation with the potential to offer relief to beleaguered healthcare providers was torpedoed by a Senate panel last week.
The Senate Labor and Human Resources Committee voted to delete a proposed cap on punitive damages in medical malpractice cases, an ominous sign for supporters of federal tort legislation. The vote was on an amendment offered by Sen. Christopher Dodd (D-Conn.), who may offer similar language in a product-liability bill he co-sponsors.
As a result of the committee action, it may be difficult for the medical malpractice bill to attract support in its current form when it reaches the Senate floor in coming weeks.
The committee action threw cold water on tort reform, which easily passed the House March 9 in a 247-171 vote.
With the cost of liability insurance premiums exceeding $10 billion a year and defensive medicine costs running in the tens of billions of dollars, the time is ripe for change.
But liability reform has been a nightmare because it pits the strength of the medical and business communities against the might of trial lawyers-a powerful lobbying group with plenty of experience in staving off congressional efforts to clamp down on lawsuits.
Polls show the public supports reform by a significant margin. And substantial tort reforms were part of virtually all healthcare reform legislation proposed in Congress' last session.
Health and medical organizations with a stake in tort reform now must step up their efforts for an effective piece of reform legislation. Among the necessary components are:
Encouraging arbitration as an alternative to lengthy and costly legal action.
Ending the system of "joint and several" liability that allows plaintiffs to seek duplicative payments from multiple defendants. The final legislation should block plaintiffs from recovering money from defendants beyond their share of the blame for any injury. In other words, hospitals shouldn't be forced to pay for problems caused by physicians.
Preventing patients from filing suits more than two years after they discover an injury.
Limiting lawyers' contingency fees.
Placing a reasonable cap on pain and suffering awards, an approach that has met with success in such states as California, Florida and Indiana. If necessary, we urge an effort to reach agreement on higher caps or on the creation of a national panel to set standards for compensating victims of treatment errors.
The road ahead is fraught with perils, including the threat of a filibuster by Senate Democrats as well as the possibility of tort reform and federal product-liability legislation becoming entangled in horse-trading.
The process of compromise and accommodation must not result in legislation that is so modest-or harmful-that it pre-empts effective state reforms with ineffective federal law.
Meanwhile, healthcare leaders should continue to work to enact state medical liability reforms. Executives should support legislation that incorporates tougher disciplinary procedures and stricter licensing regulations for physicians, and that establishes mandatory hospital risk-management programs.