A New Senate Med Mal Bill Is Introduced

By Steven Brostoff, Washington Editor

NU Online News Service, July 8, 4:20 p.m. EDT, Washington?Two senators have introduced medical malpractice reform legislation that would repeal the McCarran-Ferguson antitrust immunity for medical malpractice policies.

Sens. Richard Durbin, D-Ill., and Lindsey Graham, R-S.C., introduced the legislation, called the Better Health Act of 2003, as the Senate continued debate on S. 11, the Bush administration backed proposal that would place a $250,000 cap on non-economic damages in medical malpractice cases.

The Durbin-Graham bill (number not yet available) is being offered as an alternative to S. 11, but neither bill is expected to advance.

Under the Durbin-Graham bill, the industry’s antitrust immunity would be eliminated as it applies to medical malpractice insurance for allegations of price-fixing, bid rigging and market allocations.

In addition, the legislation would have the Treasury Department study the feasibility of creating a Federal Reinsurance Fund to pay for non-economic damages. This fund would help insurers better price their products, according to a summary of the legislation, as well as protect insurers from rising reinsurance costs.

The fund would be financed through insurance user fees.

The legislation would also establish an independent advisory commission to study medical malpractice insurance and determine the causes and scope of recent price increases.

On the tort reform front, the Durbin-Graham bill would require attorneys filing a medical malpractice action to include an affidavit by a qualified health care specialist. In addition, the attorney would have to certify that the case is meritorious.

Attorneys who file false certificates would have to pay court costs and reimburse defendants for their attorney’s fees. Repeated offenders would face additional penalties, possibly including state bar association disciplinary action.