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Editorial: Pelosi's med-mal reforms not enough

By John O'Brien | Nov 4, 2009

NEW YORK (Legal Newsline) - The director of the Manhattan Institute's Center for Legal Policy recently criticized House Speaker Nancy Pelosi's health care bill for catering to plaintiffs attorneys.

Jim Copland's editorial, entitled "Tort-Bar Treat" was published in the New York Post Tuesday, notes that grants would be given to states to fund "medical liability alternative" demonstration projects only if they do not limit attorneys fees or put caps on medical malpractice damages.

"Alas, as House Speaker Nancy Pelosi's health-care bill emerged last week, it became clear that Congress' leaders are less interested in funding demonstration projects that work than in keeping cash flowing from trial lawyers to the Democratic Party," Copland wrote.

Copland also noted that the Congressional Budget Office recently found that nationwide adoption of tort reforms would save $54 billion for health care in the next 10 years, though he said that number should be higher.

"If anything, that understates the savings," he wrote. "The CBO implausibly found that more savings would come from lowered liability premiums for doctors and less from reducing wasteful 'defensive' medical practices -- even though most statistical studies find the latter savings to be far more significant."

Defensive medicine includes performing sometimes unnecessary tests that protect physicians from malpractice claims.

Copland said Congress should explore more innovative tort reform ideas, like health courts. The only reforms her bill funds are certificate of merit rules and early offer rules.

"Certificate of merit rules require lawyers, before suing, to get a medical expert's affidavit attesting to the plausibility of the claim. Strong forms of such laws can weed out ill-founded suits, but many laws do little -- since lawyers must ultimately get an expert witness to make their case plausible at trial, anyway. Thus, this reform is typically the preferred solution of trial lawyers," Copland wrote.

"Early offer rules are designed to promote early and fair settlement of valid claims. The Manhattan Institute, as have many noted legal academics, has been promoting them for at least 15 years. To be effective, however, early offer rules must be paired with other reforms that Pelosi's bill won't permit -- limits on contingency fees or damages."

Ultimately, he called Pelosi's liability reform ideas "little more than window dressing -- more designed to protect trial lawyer profits than to reduce lawsuit abuse."

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