Pelosi's bill DOES include tort reform

… if by “tort reform” you mean “removing limitations on malpractice attorneys”.

This section seems to start out promisingly enough. States will get extra “incentive” money if the HHS Secretary determines that a state passed an effective “medical liability reform” law after Obamacare has passed. (It doesn’t address the case where a state has such a law in place already.) Then you get to the fine print, aka subsection (a)(4)….

It looks like paragraph (A) is okay. Alternatives would include certificates of merit and/or early offers. IANAL but apparently a certificate of merit gives some 3rd party validation that the claim has some merit, which should reduce frivolous suits unless this is something that always get rubber-stamped. And an early offer is a way for a provider to settle promptly. The idea as I understand it is that the patient benefits by not having it tied up for years in court and the provider benefits by not risking a huge judgement later. So far so good if I followed it correctly.

Then the kicker is paragraph (B). If a state’s “medical liability reform” includes caps on either attorney fees or damages, then the state need not apply for this “incentive”. Gee, I guess we know the trial lawyers will be all for this bill. You can easily see where this could come into play. The Pelosi bill would add a ton of costs to states for their share of expanded Medicaid coverage, and Uncle Sam could offer to help with that – as long as the state leaves malpractice attorneys alone.



  • (1) IN GENERAL.—To the extent and in the amounts made available in advance in appropriations Acts, the Secretary shall make an incentive payment, in an amount determined by the Secretary, to each State that has an alternative medical liability law in compliance with this section.
  • (2) DETERMINATION BY SECRETARY.—The Secretary shall determine that a State has an alternative medical liability law in compliance with this section if the Secretary is satisfied that—
    • (A) the State enacted the law after the date of the enactment of this Act and is implementing the law;
    • (B) the law is effective; and
    • (C) the contents of the law are in accordance with paragraph (4).
  • (3) CONSIDERATIONS FOR DETERMINING EFFECTIVENESS.—In determining whether an alternative medical liability law is effective under paragraph (2)(B), the Secretary shall consider whether the law—
    • (A) makes the medical liability system more reliable through prevention of, or prompt and fair resolution of, disputes;
    • (B) encourages the disclosure of health care errors; and
    • (C) maintains access to affordable liability insurance.
  • (4) CONTENTS OF ALTERNATIVE MEDICAL LIABILITY LAW.—The contents of an alternative liability law are in accordance with this paragraph if—
    • (A) the litigation alternatives contained in the law consist of certificate of merit, early offer, or both; and
    • (B) the law does not limit attorneys’ fees or impose caps on damages.

(b) USE OF INCENTIVE PAYMENTS.—Amounts received by a State as an incentive payment under this section shall be used to improve health care in that State.

(c) TECHNICAL ASSISTANCE.—The Secretary may provide technical assistance to the States applying for or receiving an incentive payment under this section.

(d) REPORTS.—Beginning not later than one year after the date of the enactment of this Act, the Secretary shall submit to the Congress an annual report on the progress States have made in enacting and implementing alternative medical liability laws in compliance with this section. Such reports shall contain sufficient documentation regarding the effectiveness of such laws to enable an objective comparative analysis of such laws.

(e) DEFINITION.—In this section—

  • (1) the term ‘‘Secretary’’ means the Secretary of Health and Human Services; and
  • (2) the term ‘‘State’’ includes the several States, District of Columbia, the Commonwealth of Puerto Rico, and each other territory or possession of the United States.

(f) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated to carry out this section such sums as may be necessary, to remain available until expended.

Apologies for the bullets – I tried to make this as readable as possible.