Medical Malpractice

The health care reform legislation, as passed in the House (H.R. 3962) includes an amendment that gives federal incentive payments to states that pass legislation with either a "certificate of merit" or a "sorry works/early offer program" in it, provided the state legislation does not cap damages or limit attorneys' fees. The Senate-passed version (H.R. 3590) makes states eligible for grants to test alternatives to civil tort litigation that emphasize patient safety, disclosure of health care errors, and early resolution of disputes. That provision allows patients to opt-out of these alternatives at any time.

The ABA opposes caps on damages and endorses the use of alternatives to litigation for resolution of medical malpractice disputes, but only when such alternatives are entered in to on a voluntary basis after a dispute has arisen. President Obama, in his 2009 State of the Union Address, asked the Secretary of Health and Human Services to award to states and health systems grants for demonstration projects on patient safety and medical liability reform. The grants will be awarded by the Office of the Agency for Healthcare Research and Quality.

In addition to support for certain alternatives to litigation as mentioned above, the ABA has policy supporting pilot programs for reporting "near misses" and medical errors, and policy that addresses both safety and liability concerns.

This information site addresses the issues related to this debate.