NU Online News Service, Feb. 11, 1:41 p.m. EST

Markup of legislation that would impose federal limits on medical liability lawsuits was delayed on Wednesday, when Republicans on the House Judiciary Committee challenged the constitutionality of the proposed legislation.

Officials of the Physicians Insurers Association of America (PIAA), Rockville, Md., however, a key supporter of the legislation, defended the bill, noting a safety valve for states in the bill.

The legislation, H.R. 5, the HEALTH Act, was being marked up Wednesday in the House Judiciary Committee when Rep. Ted Poe, R-Texas, a member of the Tea Party Caucus, charged that it would violate the Constitution.

Lawrence E. Smarr, president of the PIAA said the trade group "understands the states' rights arguments, and that's why there is a provision in the HEALTH Act to allow any state, at any time, to deviate from the $250,000 cap on noneconomic damages."

In addition, he explained, the bill also contains a provision protecting the laws of any state, which are stronger than any other provisions included in the bill.

"Therefore, H.R. 5 is intended to set a baseline standard from which states have a great deal of flexibility to deviate, but which provides a minimum level of protection/stability for insurers, healthcare providers, and patients when dealing with a medical liability claim," Mr. Smarr said.

The bill was introduced a week earlier by Rep. Lamar Smith, R-Texas, chairman of the Judiciary panel.

Co-sponsors include Rep. Phil Gingrey, R-Ga., and Rep. David Scott, D-Ga.

It imposes a $250,000 cap on subjective, noneconomic damages; collateral source rule reform allowing evidence of outside payments to be made in court; a ban on subrogation by collateral sources; a fee schedule for attorney contingency fees; and imposes periodic payments of future damages.

The legislation is tied to the House Republicans' campaign to propose alternatives to the current healthcare reform system.

Rep. Poe, a former state Felony Court judge, also said he may vote against the legislation if it imposes caps on states that don't want them. "I got problems with that," Poe said. "I think it's a violation of the 10th Amendment."

He was joined by Rep. Hank Johnson, D-Ga., and Rep. Mel Watts, D-N.C., both of whom also challenged the bill's ability to preempt state medical liability laws.

Rep. Louie Gohmert, another Texas Republican, criticized the legislation as well. "If Alabama and New York want to be a haven for malpractice suits, it's great for Texas," Gohmert said.

He added, "I'm reticent to allow Congress to impose our will on the states."

The decision to delay final action on the legislation until Feb. 16 was made after Rep. Hank Johnson, D-Ga., introduced an amendment that would bar the legislation from overriding state constitutions that forbid medical malpractice caps.

Rep. Smith then agreed to work with Rep. Johnson on an amendment limiting the scope of the measure in the interim.

Both Rep. Johnson and Rep. Watt criticized the Republicans for saying the healthcare legislation was too intrusive, while proposing legislation that infringed on state's rights.

"I think President Reagan would be appalled," Rep. Johnson said.

Rep. Watts added, "I thought it was the Republican members of our committee who believe in states' rights."

But Rep. Smith defended the law, arguing that tort reform falls under the purview of the Constitution's Commerce Clause.

The American Association of Justice, which represents trial lawyers, opposes the bill, calling it Draconian.

"This bill will impose severe, one-size-fits-all caps on damages that injured patients can seek – not just when injured by medical negligence, but also by defective drugs, medical devices, or abuse suffered in nursing homes," Gibson Vance, AAJ president, charges.

Mr. Vance said that it even extends this cap to health care providers that intentionally harm or kill patients, as well as insurance companies that refuse to pay just claims for medical bills.

"The bill is beyond extreme. Its authors should focus on real measures that will improve patient safety, not provide welfare to drug and insurance companies that stand to gain the most from this proposal," Mr. Vance added.

Special Reports /

Republicans Challenge Med Liability Bill; Cite State Rights

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