State and national efforts to reform the medical liability climate continue as physicians and their advocates assert that the current climate dramatically increases the cost of health care.  While the Affordable Care Act includes some provisions aimed at improving the nation’s medical liability system, new legislation would add to those and would strenghten efforts at the state level to achieve meaningful reform.

The AMA reported recently that early in the 112th Congress, Reps. Phil Gingrey, MD, R-Ga., and David Scott, D-Ga., introduced H.R. 5, the Help Efficient, Accessible, Low-cost Timely Health Care (HEALTH) Act. This bill, which the AMA supports, is based on the comprehensive medical liability reforms that have proven successful in states such as California and Texas, and has already begun its journey through the legislative process.

The AMA also reported that The U.S. House of Representatives Judiciary Committee began the process of considering amendments, known as a “mark-up,” to the HEALTH Act on Feb. 9. The votes were along party lines, with Democrats unsuccessfully offering amendments to weaken the bill’s $250,000 cap on noneconomic damage awards.

The mark-up became contentious when two Republicans, Reps. Ted Poe, R-Texas, and Louie Gohmert, R-Texas, agreed with Rep. Mel Watt, D-N.C., that medical liability is traditionally regulated by the states and the federal government should not act on medical liability reform legislation.

The HEALTH Act would preserve state laws that contain stronger reforms and institute a $250,000 cap on noneconomic damages in states that have no cap, but weaker provisions of state laws that are less protective of health care providers would be pre-empted. The critical exception is the cap on noneconomic damages; the bill would preserve any cap set by a state.

Given this division in the committee, the mark-up was adjourned until Feb. 16 to provide time for addressing concerns with amendments on preserving states’ rights, indexing the damage cap to inflation and exempting intentional torts from the damage cap.

During part two of the mark-up, all amendments were defeated with the exception of one offered by Rep. Bobby Scott, D-Va., to repeal the collateral source and subrogation provisions. Repealing this language would have the effect of preventing a jury from hearing evidence of payments made to plaintiffs from collateral sources, such as health insurance payments for medical costs. While plaintiffs would ostensibly receive higher damage awards without the collateral source evidence, striking the subrogation language means health insurance companies could assert subrogation rights and reduce the damage award further.

The AMA supports the collateral source and subrogation language originally included in the HEALTH Act. This language could still be incorporated into the bill during Rules Committee consideration, the last step before a bill is sent to the House floor.

With regard to concerns about states’ rights, Judiciary Committee Chairman Lamar Smith, R-Texas, is working on an amendment to empower states that will be available three days before House floor action.

The issues of exempting intentional torts from the cap on noneconomic damages and indexing the $250,000 cap on noneconomic damages to inflation were both voted down during the committee mark-up.

The AMA has policy objecting to both amendments since they would undermine the effective reforms and cost controls in the HEALTH Act. The amended bill was approved by the committee by a vote of 18-15 and now awaits consideration by the U.S. House Energy and Commerce Committee.

The AMA sent a letter of support for H.R. 5 as introduced, and for the U.S. Senate’s version of the bill, S. 218, introduced by Sen. John Ensign, R-Nev.