NU Online News Service, April 6, 3:25 p.m.EDT

A state legislative group has asked a House committee to dropefforts to impose a "one-size-fits-all" standard on medicalliability through federal legislation.

The comments by officials of the National Conference of StateLegislatures (NCSL) in a letter to the Health Subcommittee of theEnergy & Conference Committee also says such legislation"inappropriately seeks to preempt various areas of state law."

The letter notes that the NCSL had studied the issue at lengthin 2005, and "the resounding bipartisan conclusion was that federalmedical malpractice legislation is unnecessary."

The letter was sent as the subcommittee held a hearing on H.R.5, the "Help Efficient, Accessible, Low-Cost, Timely Healthcare(HEALTH) Act of 2011." The bill would impose federal limits onmed-mal lawsuits.

The legislation imposes a $250,000 cap on subjective,noneconomic damages; a collateral source rule reform allowingevidence of outside payments to be made in court; a ban onsubrogation by collateral sources; a fee schedule for attorneycontingency fees; and periodic payments of future damages.

The bill was reported to the House floor Feb. 17 by the HouseJudiciary Committee as part of the new House Republican majority'sdecision to parcel out to various committees the responsibility forcrafting bills designed to repeal the Patient Protection andAffordable Care Act and replace it with provisions that moreaccurately represented the "will of the people."

The Judiciary Committee delayed markup of the bill as bothRepublicans and Democrats voiced concerns that dealing with medicalliability laws on a federal basis may preempt state's rights—thesame argument made in the NCSL letter. When reported out by theJudiciary Committee, the panel's leadership decided to let the fullHouse determine whether to amend a provision in the legislationthat may preempt states' rights.

The NCSL letter says that "adoption of a one-size-fits-allapproach to medical malpractice envisioned in H.R. 5 and otherrelated measures would undermine that diversity and disregardfactors unique to each particular state."

The letter also says that all 50 states have statutes oflimitations for medical-malpractice suits, as well as rules ofcivil procedure governing the admissibility of evidence and the useof expert witnesses. "Many states have caps on noneconomic damagesand limitations on attorney's fees in medical-malpracticecases."

At the subcommittee hearing, Lisa M. Hollier, testifying onbehalf of the American Congress of Obstetricians and Gynecologists,said, "Our current tort system fails patients and providers."

She said it is "costly, time-consuming, inefficient and unjust,with widely variable and inconsistent monetary judgments awarded bylay juries to injured patients."

In submitted testimony, Lawrence Smarr, President/CEO of thePhysician Insurers Association of America, Rockville, Md., said,"Neither doctors nor patients benefit from a system of rampantlitigation. Only lawyers do, and thus they support a system that isfundamentally flawed and inefficient"

But Brian Wolfman, co-director of a nonprofit student-centeredlegal clinic at Georgetown Law School, testified, "I know a baddeal for consumers when I see one, and H.R. 5 is a very baddeal."

He said the free market works reasonably well in individuallawsuits, where the client's interest in maximizing recovery andthe lawyer's interest in a fair fee are well aligned and do notrequire the kind of micro management and anti-free marketregulation that H.R. 5 would impose.