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2006 Legislative Priorities
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Investment income is down, and as a result, the insurance industry is now charging higher medical malpractice premiums. The American Medical Association (AMA) is calling for federal legislation that preempts state medical professional liability laws to limit compensation to patients injured by malpractice because the AMA assumes such limits will reduce malpractice rates. However, there is no evidence that limiting compensation to injured patients will have a real impact on malpractice rates. The AMA is carrying on a multi-million dollar public relations campaign to gain public support for such federal legislation and for tort law changes at the state level.
President Bush has made tort reform a top priority. In this Congress, ABA-opposed legislation, H.R. 5, legislation to preempt the state medical liability laws passed the House by a vote of 230-194 on July 28, 2005. The ABA sent a letter to all members of the House of Representatives opposing H.R. 5. H.R. 5 and S. 354 would preempt state medical liability laws and, among other things, impose a cap of $250,000 on pain and suffering awards in states with no caps; cap punitive damages; eliminate joint liability on non-economic damages; and impose a federal statute of limitations. On May 8, 2006, the Senate, by a vote of 48-42, voted not to invoke cloture on S. 22, ABA-opposed legislation that preempts the state medical liability laws and imposes federal standards including a cap on noneconomic damages. The ABA sent a letter to all Senators oppossing S. 22. S. 22 would impose a cap on non-economic damages in medical malpractice lawsuits unless a state has enacted or enacts a cap on non-economic damages. Regardless of the number of parties other than a health care institution, the amount of non-economic damages awarded in a cause of action involving such a provider or providers would be capped at $250,000. The amount of non-economic damages against a single health care institution would be capped at $250,000. The total amount of non-economic damages against all such health care institutions would be capped at $500,000. It would also cap punitive damages, eliminate joint liability on non-economic damages and impose a federal statute of limitations. In addition, on May 8, 2006, after voting on cloture for S. 22, the Senate considered S. 23, legislation similar to S. 22 except that it would limit liability only for the field of obstetrics and gynecology. S. 23 failed by a vote of 49-44 to get the 60 votes needed to invoke cloture.
The ABA urges the legal and medical professions to cooperate in seeking a solution to medical liability problems and maintains that federal involvement in the area is inappropriate. In particular, the ABA opposes caps on pain and suffering awards, supports retaining current tort rules on malicious prosecution, collateral sources and contingent fees, and believes that the use of structured settlements should be encouraged. It also supports certain changes at the state level in the areas of punitive damages, jury verdicts and joint and several liability.
- Congress should not substitute its judgment for the systems that have thoughtfully evolved in each state over time. If enacted, the proposed legislation would preempt the rights of states to administer medical liability laws, an authority that has rested with the states for over 200 years. This system is a hallmark of our American justice system. Because of the role they have played, the states are the repositories of experience and expertise in these matters.
- There should be no ceilings on pain and suffering awards. Instead, the courts should make greater use of their powers of remittitur to set aside excessive verdicts.
- There is no evidence that caps on pain and suffering awards will reduce medical malpractice premiums.
- Proposals to limit non-economic damages deprive individuals of compensation for the consequences of medical malpractice injuries. No one has stated that such injuries are not real or severe; in fact, non-economic injuries may far exceed economic damages. These proposals, if enacted, would make seriously injured persons who are the least able to afford it receive less than full compensation, and thus help subsidize recoveries for less seriously injured persons who would be fully compensated. This would be grossly unjust and doubly so since it would not appreciably affect the cost of health care.
ABA Standing Committee on Medical Professional Liability
Studies and Resources on Federal Medical Malpractice Legislation
ABA Day Medical Malpractice Resources Page
ABA Letters and Testimony
Senate Vote Count for S.22 (109th Congress)
House Vote Count for H.R. 5 (109th Congress)
Staff Contact: Lillian Gaskin, Senior Legislative Counsel
Last Updated: November 20, 2006