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December 19, 2009

ReidCare Throws a Bone to Tort Lawyers Too

It establishes a 5-year $50 million grant program for states to establish an alternative to the current medical malpractice liability system.

Wait, did I say "alternative"? I meant additional med-mal liability system. So not only will doctors and hospitals and patients continue to be plagued by the extremely expensive current med-mal scheme, Congress is encouraging the states to set up a med-mal alternative to add another layer of complexity to an already over-complicated system.

See for yourself:

Section 10607 (p.344 of the Manager’s) establishes a 5-year grant program. The program is administered by the HHS Secretary (Sebelius), in consultation with a review panel. The review panel is structured to ensure that trial lawyers are amply represented, with seats specifically reserved for “patient advocates,” “attorneys with expertise in representing patients,” and “patient safety experts.”

[...]


The conditions tied to the grants ensure that the “alternative to litigation” established under the grants will, in practice, increase doctors’ liability and trial lawyers’ paydays. Most importantly, the grantee-State is required to “provide[] patients the ability to opt out of or voluntarily withdraw from participating in the alternative at any time and to pursue other options, including litigation, outside the alternative . . . .” If the plaintiff has a unilateral right, at any time, to pull out of the “alternative” and pursue litigation, then the “alternative” will only be used when the plaintiff’s lawyer believes that the “alternative” is more plaintiff-friendly than the litigation system.

The demonstration project also cannot “limit or curtail a patient’s existing legal rights, ability to file a claim in or access a State’s legal system, or otherwise abrogate a patient’s ability to file a medical malpractice claim.” This language means that damage caps and statute of limitations reforms would likely be off the table in any “alternative to litigation” established under the grants.

Bang-up job, guys.


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posted by Gabriel Malor at 06:49 PM

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