House Health Subcommittee Looks at Alternatives to Noneconomic Caps

House Energy and Commerce Subcommittee on Health members on Thursday "pledged to work together” to develop new solutions to medical malpractice reform. Since 1995, the House has approved legislation eight times to limit noneconomic damage awards in medical malpractice suits to $250,000, but the Senate has voted against them. According to reports, lawmakers are divided over whether a cap is essential for reform and whether "such an approach fails to focus on what [some lawmakers] believe is the real root of the problem: insurers making hefty profits on liability insurance premiums for physicians and other health care providers." The general counsel for Common Good advocated for the use of medical malpractice "health courts," which he said would depend on the standard of "avoidability" wherein a medical injury is compensable if it could have been avoided had best practices been followed – a broader standard than negligence.  Employing the avoidability standard will expand compensation and reduce the focus on individual physicians, according to proponents, because they claim the majority of medical errors today are the result of breakdowns in systems of care. (On June 22 & July 13, 2006 two U.S. Senate Committees held hearings to consider bipartisan legislation that would create pilot projects for special health courts including S.1337, known as the Fair and Reliable Medical Justice Act.) Another reform called “early offer” was testified to, giving medical liability insurers an option to make a settlement offer within 180 days after a claim is filed that would be equal to a patient's net economic loss and "reasonable" legal fees. Patients could reject the offer, but legal standards for burden of proof and the level of misconduct would be raised in the ensuing litigation.