TESTIMONY
By Senator Michael Balboni
New York Senate
Chair, NCSL Committee on Law & Criminal Justice
April 4, 2005
Staff Briefing in the U.S. House of Representatives
on Proposed Federal Medical Liability Reform
Good afternoon, I am Senator Michael Balboni. I speak today on behalf of the National Conference of State Legislatures in my capacity as Chair of NCSL’s Law and Criminal Justice Committee. NCSL is a bipartisan organization representing the 50 state legislatures and those of the U.S. territories. NCSL is a policy-making organization and has enacted policy on the issues of federalism and the role of the federal government in state medical malpractice and tort reform generally. Our fundamental position on all of these issues is the same – the states should retain their authority to govern in the area of tort reform. This body of law has traditionally been regulated at the state level and is an area of established state authority. The federal government has not shown that the preemption of state medical malpractice laws is the only reasonable means to solve our nation’s health care crisis.
I am not here today to debate the merits of a damages cap or whether or not attorneys fees ought to be regulated. I am here today to talk to you about which level of government is the most appropriate to make those decisions. I submit to you that decisions regarding tort law are most appropriately made at the state level.
The proposed federal solution to concerns about medical malpractice in the states presumes state inactivity. Allow me to illustrate otherwise. In 2004, nine states passed medical malpractice reforms. Four more had measures on the 2004 General Election ballot relating to medical malpractice. There are currently over 300 bills pending in 40 state legislatures dealing with virtually all aspects of the medical malpractice issue. For example, 19 states are considering limits on noneconomic damages, 15 states are considering various measures aimed at insurance reporting, ten states are looking at their statutes of limitations in medical malpractice actions, ten states are looking at joint and several liability reform, and nine states are looking at either alternative dispute resolution or mediation in lieu of litigation as a way of resolving medical malpractice claims. A complete list of pending legislation in all of the state legislatures can be found on NCSL’s website which is referenced in your packet of briefing materials. I urge you to review these materials and to talk to members of your state legislature. Chances are, changes are occurring in medical malpractice reform in your state, and specific issues of concern to your home state are being aired in your state legislature. It is a suitable role for the federal government to encourage this state innovation, not to replace it with a uniform federal solution that may not be workable in all the states.
The pending federal bill seeks to impose many preemptive requirements on states. For example, it requires all states to have a damages cap. 27 states currently have a damages cap and again, 19 states are currently considering one. The bill also seeks to impose an elaborate statute of limitations scheme which is not consistent with existing law in many states. It seeks to establish limitations on attorneys fees in medical malpractice actions. 19 states currently have limits on attorneys fees in medical malpractice actions. Nine more states, including my own state of New York, are considering limits on attorneys fees in their 2005 legislative sessions. In many of the states that don’t limit attorneys fees, their reasonableness can be reviewed by a court. The federal bill also sets out a legal standard for the awarding of punitive damages. Again, this should be left to the purview of the states. All states define when punitive damages are appropriate and how one must go about proving them. This bill also would preempt state product liability laws by providing immunity from punitive damages for manufacturers or distributors of medical products so long as these manufacturers and distributors obtained FDA approval for the product. All states have product liability laws which provide the framework for this type of action. In sum, this bill will severely curtail the ability of state legislatures to be responsive to the specific needs of their constituents and craft state laws that address the unique conditions in their states.
I’d like to quote Justice Brandeis who wrote over 70 years ago, “it is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” It is NCSL’s position that Congress must allow states flexibility to shape public policy. Creative solutions to public problems can be achieved more readily when state laws are accorded due respect. Medical liability laws are purely state issues. They ought to be left to the states to regulate as has been the case since the first medical malpractice lawsuit.
Thank you for your time. I would be happy to answer any questions.
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