Medical Malpractice Tort Reform

March 16, 2005

The Honorable Bill Frist                                  The Honorable Harry Reid
Majority Leader                                             Minority Leader
U.S. Senate                                                  U.S. Senate
Washington, DC 20510                                  Washington, DC 20510

RE: Senate Bill 354, the “Help Efficient, Accessible, Low-Cost, Timely Healthcare (HEALTH) Act of 2005.”

Dear Senator Frist and Senator Reid:

On behalf of the National Conference of State Legislatures, I am writing to express strong, bipartisan opposition to the passage of the most recent federal medical malpractice legislation, S. 354, the “Help Efficient, Accessible, Low-Cost, Timely Healthcare (HEALTH) Act of 2005,” pending before the United States Senate.

Medical malpractice, product liability and other areas of tort reform are areas of law that have been traditionally and successfully regulated by the states. Since the country’s inception, states have addressed the myriad of substantive and regulatory issues regarding licensure, insurance, court procedures, victim compensation, civil liability, medical records and related matters. In the past two decades, all states have explored various aspects of medical malpractice and products liability and chosen various means for remedying identified problems. In 2004, medical malpractice legislation passed in Mississippi, Ohio, Maryland, Nevada, Florida, Oklahoma, and West Virginia. In 2005, Georgia, Virginia, and Wyoming have already passed bills. Currently, 39 states have introduced medical liability reform bills in their 2005 state legislative sessions. There are over 300 pending bills.

NCSL’s Medical Malpractice policy explicitly and firmly states that “American federalism contemplates diversity among the states in establishing rules and respects the ability of the states to act in their own best interests in matters pertaining to civil liability due to negligence.” That diversity has worked well even under the most trying and challenging circumstances. The adoption of a one-size-fits-all approach to medical malpractice envisioned in S. 354 and other related measures would undermine that diversity and disregard factors unique to each particular state.

Federal medical malpractice legislation inappropriately seeks to preempt various areas of state law. All 50 states have statutes of limitations for medical malpractice suits. All 50 states have rules of civil procedure governing the admissibility of evidence and the use of expert witnesses. Approximiately half of the states have caps on noneconomic damages and limitations on attorney’s fees in medical malpractice cases.

This issue was scrutinized again at NCSL’s recent Fall Forum. Our review included assessing whether circumstances had developed or were so unique that only federal action could provide an adequate and workable remedy. We again examined recent state actions, policy options and experiences. We discussed at length how various proposed or anticipated pieces of federal legislation fared against NCSL’s core federalism questions. Those questions included (1) whether preemption is needed to remediate serious conflicts imposing severe burdens on national economic activity; (2) whether preemption is needed to achieve a national objective; and (3) whether the states are unable to correct the problem. The resounding bipartisan conclusion was that federal legislation is unnecessary.

NCSL’s opposition will extend to any bill or amendment that directly or indirectly preempts any state law governing the awarding of damages by mandatory, uniform amounts or the awarding of attorney’s fees. Our opposition also extends to any provision affecting the drafting of pleadings, the introduction of evidence and statutes of limitations. Furthermore, NCSL opposes any federal legislation that would undermine the capacity of aggrieved parties to seek full and far redress in state courts for physical harm done to them due to the negligence of others.

Thank you for your consideration of our concerns. For additional information, please contact Susan Parnas Frederick (202-624-3566) or Trina Caudle (202-624-8695) in NCSL’s Washington, D.C. office.

Respectfully,

Michael Balboni
New York Senate
Chair, NCSL Law & Criminal Justice Committee

Cc: Members of the U.S. Senate