Corrections to Misinformation About Medical Liability Reform Provisions in H.R. 3962

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.

Most recently, misinformation has been circulated regarding a minor medical liability reform provision included in H.R. 3962, the “Affordable Health Care for America Act.” 

Some posters have suggested that §2531, titled “Medical Liability Alternatives,” would supersede existing, effective state medical liability reforms.  This is not accurate.

§2531 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.  

Moreover, 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. 

States 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. 

Interestingly, 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.

In 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 [email protected].
 
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.