As has been seen throughout the health reform debate, there is a
great deal of misinformation circulating on listservs and websites
regarding provisions of the various reform proposals.
recently, misinformation has been circulated regarding a minor medical
liability reform provision included in H.R. 3962, the “Affordable
Health Care for America Act.”
posters have suggested that §2531, titled “Medical Liability
Alternatives,” would supersede existing, effective state medical
liability reforms. This is not accurate.
of H.R. 3962 would provide “incentive payments” to states that enact
“medical liability alternatives.” The Secretary of Health and Human
Services (“Secretary”) would determine that a state has an alternative
medical liability law if:
- the law was enacted after
the enactment of H.R. 3962 and the state is implementing the law;
- the law is effective; and
- the litigation alternatives contained
therein consist of certificate of merit, early offer, or both and does not limit attorneys’ fees or impose caps on damages.
Because this provision applies only to states seeking to advance reforms in the future, this provision should be properly interpreted to mean that states with existing state laws that include caps on damages are not affected in any way. There is no superseding of existing state laws in this provision.
states would remain free to enact medical liability reforms that
include caps on damages or limits on attorney’s fee after the enactment
of H.R. 3962. However, those states would not be eligible to receive
the “incentive payments” under this provision.
that are seeking to advance medical liability alternatives could
qualify for the payments only if the state law enacted contain
certificate of merit, early offer, or both reforms.
we believe that states with existing reforms, even caps or limits,
would be eligible for incentive payments if they elected to enact new
reforms that included the certificate of merit or early offer so long
as the new law did not include any new caps or limits.
sum, §2531 is intended to encourage states to advance certain liability
reform alternatives. Regrettably, the reforms being incentivized,
while meaningful, are not the reforms the ASA believes will be most
effective in reducing liability-related costs. Nevertheless, ASA
believes the concept of providing funding for state liability reforms
is a step in the right direction and may create an opportunity for
future consideration of alternatives that do include caps on damages or limits on attorney’s fees.
Additional questions regarding this provision should be directed to Lisa Albany at L.firstname.lastname@example.org.
ASA members are urged to be mindful of the potential for health care
reform misinformation (both positive and negative) to be circulated on
listservs and websites.