Congressman Robert E. Andrews (D-NJ) has introduced new legislation to rein in the cost of medical malpractice insurance by requiring that all interstate healthcare negligence claims go through mandatory arbitration prior to full-fledged litigation. H.R. 3865, introduced Sept. 22, takes an approach that is unique from other proposals at the state and federal level to control malpractice suits and their impact on the health care system: it suggests a mandatory arbitration system that also allows a party to bring a civil action within 30 days of an award if they are dissatisfied. Three other bills pending in Congress, H.R. 2657, 3359, and 3378, propose the use of mediation to handle medical liability cases. Andrews' bill would create medical liability panels for arbitration, consisting of qualified specialists and medical experts. One goal of the panels would be to identify and dismiss frivolous lawsuits. In the event a case is ruled frivolous, a plaintiff would still have the right to bring an action in court, but with the caveat that they would be responsible for the attorney and court fees of the defendant if they lose. If a arbitration panel is split on whether there was negligence, that "loser pays" provision would not apply in court. The Department of Health and Human Services would be responsible for establishing medical malpractice arbitration panels. If a party is unhappy with the award they could still bring an action in court, and "all statements, offers, and communications made during such arbitration, shall be inadmissible for purposes of adjudicating such action," it says.
States would be required to notify citizens of the arbitration procedures for medical malpractice claims and possible subsequent court procedures, the bill says. In order to guarantee that arbitration is carried out in a fair and judicious manner, the Department of Justice, after consulting with HHS, would promulgate regulations covering arbitration.