Medical Malpractice Tort Reform

2003 – 2004 Federal Medical Malpractice Action

During 2003 and 2004, Congress unsuccessfully attempted to tackle the issue of rising medical malpractice insurance costs by introducing federal tort reform legislation. These bills sought to limit noneconomic jury damage awards, regulate attorney fees, and mandate statutes of limitation in all medical malpractice lawsuits. These areas of court law have always have been regulated at the state level.

The genesis of the recent rash of federal medical malpractice legislation stems from President Bush’s overall goal of achieving tort reform across the board, as evidenced by these bills, class action reform bills, and others, coupled with the AMA’s increasing alarm with the rise in medical malpractice insurance premiums in many states and belief that doctors in certain specialties were either leaving the field or a particular geographical area due to med mal claims being filed against them.

In 2003, the first of the medical malpractice bills was introduced – H.R. 5, by Rep. Greenwood (R-PA) and passed the House (229-196). Its counterpart, S. 607, fell short in the Senate. The Senate could not get cloture after several attempts so the bill died.

At the end of 2003/beginning of 2004, the Senate went back to the drawing board. There was a general perception that H.R. 5/S. 607 were too broadly crafted and a narrower scope was needed. As a result, the Senate introduced S. 2061 (Gregg/Ensign) “The Healthy Mothers and Healthy Babies Access to Care Act of 2003.” S. 2061 is textually the same as S. 11 and 607 and H.R. 5, but it now only applied to OB/GYN doctors. OB/GYN’s were selected because of the soaring malpractice insurance premiums for obstetrics and the perceived “exodus” of OB’s from the field due to the risk of lawsuits. On February 24, 2004 the Senate couldn’t get cloture again, so the bill was withdrawn.

The next bill introduced in the Senate was S. 2207, the “Pregnancy and Trauma Care Access Protection Act of 2004” which was introduced on March 12, 2004 by Sen. Gregg. S. 2207 applied to OB/GYNs and Emergency Room/Trauma doctors. The text was the same as prior legislation, but again the Senate could not get cloture so on April 7, 2004 the bill was withdrawn.

The House revisited the medical malpractice issue and passed H.R. 4280 on May 12, 2004 which was another broad bill identical to H.R. 5. Although federal medical malpractice legislation failed to pass both Houses of Congress in the 108^th Congress, the issue is far from dead. President Bush has made tort reform a priority issue for the 19^th Congress and congressional leadership has promised to take it up in the early part of 2005.

The proposed Federal legislation:

Caps punitive damages at $250,000;
Mandates a 3 yr. Statute of Limitations to initiate lawsuits absent fraud, intentional concealment, or presence of a foreign body;
Prohibits instructing a jury on the amount of the cap;
Places limits on contingency fees;
Mandates the qualifications for expert witnesses in state med mal cases;
Defines the standard for awarding punitive damages (clear and convincing evidence), and when you can ask for them (in a separate proceeding);
Prohibits punitive damages from being awarded against medical product manufacturers where there was premarket approval by the FDA, the product was cleared by the FDA or the product is generally recognized by experts in the field as safe.

NCSL has current policy which opposes federal medical malpractice legislation on federalism and preemption grounds.

For more information, please contact Susan Parnas Frederick, susan.frederick@ncsl.org or Trina Caudle, trina.caudle@ncsl.org