Experimental Tort Reform: States take different approaches to implement change

Health courts are another idea with a lot of buzz. Under this concept, championed by the nonprofit legal reform coalition Common Good, medical injury cases would go to specialized courts featuring adjudicators with medical expertise, independent expert witnesses and predictable damage awards.

“The changed state political landscape may not improve the chances for award caps.”—Michelle M. Mello, JD, PhD

Stipulations in the health reform law, however, could make a health court project an awkward fit for the program. The law states that the demonstration projects cannot limit patients’ existing legal rights or ability to file a claim in state court and that patients may opt out of a project at any time and file under the existing system. So, for example, a liability insurer “could decide to convene a health court-like panel, but ultimately patients can opt out of that at any time even if they go all the way through the process,” Dr. Mello said. “Obviously, that limitation in the health reform law significantly restricts the kinds of experiments that we could see under these demonstrations.”

The stipulations are a fundamental flaw in the law, Smarr said. “What good is it if [when plaintiffs] don’t like the way it’s going, [they] can leave?”

The Future of Caps

The PIAA, AMA and American Academy of Otolaryngology-Head and Neck Surgery (AAO-HNS) have vowed to continue to push for tort reforms like those passed in California and Texas, both of which cap noneconomic damage awards at $250,000. The Republican takeover of the U.S. House in the November 2010 elections improves the chances for passage of similar reforms in that chamber next year, experts interviewed for this article said. The Senate, which remains majority Democrat, is expected to block any such effort.

GOP gains at the state level mean tort reform with noneconomic damage caps could become a hot topic at the state level. At the gubernatorial level, several states flipped to the GOP, bringing the total number of Republican governors to at least 29. The party also gained control of one or both houses in 13 state legislatures. The changed state political landscape may not improve the chances for award caps, Dr. Mello said. Because of court setbacks in some states, politicians might not want to expend political capital on the issue, she explained. Earlier this year, the Georgia and Illinois Supreme courts struck down noneconomic damage caps.

The medical community must keep fighting at the federal and state levels for medical malpractice reforms like those in California and Texas, said Ronald B. Kuppersmith, MD, AAO-HNS immediate past president. “You have to keep trying because you never know,” he added.