Final Healthcare Reform Bill Signed into Law, Poses Little Impact on Medical Professional Liability Insurance Industry

Washington’s debate over healthcare reform came to an official close on March 25, when the U.S. House of Representatives voted 220-207 to pass legislation that made budgetary “fixes” to the Patient Protection & Affordable Care Act, the 2,409-page piece of healthcare reform legislation signed into law earlier that same week. This final legislation, debated under special rules designed to prevent a filibuster in the Senate, passed that chamber earlier in the day by a vote of 56-43.

There was nothing in the “fix-it” bill that directly affects medical professional liability insurers, although Sen. John Ensign of Nevada had attempted to add a medical liability provision during Senate debate. Specifically, the Ensign amendment would have granted immunity from medical liability lawsuits to anyone providing pro bono care to an individual who was indigent or uninsured, providing the healthcare provider had not committed gross negligence or acted outside the scope of his or her licensure. The amendment was defeated by a straight party line vote of 40-55.

Also missing from the final bill was any language that would repeal medical liability insurers’ longstanding exemption from federal antitrust laws.

Sen. Patrick Leahy of Vermont had once offered an amendment to the healthcare reform bill that would have voided the McCarran-Ferguson Act of 1945—which exempts the healthcare and medical liability insurance industries from federal antitrust laws that apply to most other industries. The amendment once had 18 cosponsors and successfully moved through the Senate Judiciary Committee.

What is in the final Patient Protection & Affordable Care Act is a weak provision that would provide $50 million for grants to states that want to launch “demonstration projects” to test medical tort reform.

According to the bill, individual states that get funds set aside for tort reform demonstration projects will be required to develop an alternative to current tort litigation that allows for the resolution of disputes over injuries allegedly caused by healthcare providers or healthcare organizations; and promotes a reduction of healthcare errors by encouraging the collection and analysis of patient safety data related to disputes by organizations that engage in efforts to improve patient safety and the quality of healthcare.

Critics of the “demonstration project” tort-reform provision in the healthcare bill point to its opt-out clause, which allows any plaintiff to opt out of a program he or she doesn’t like, and pursue his or her claims in state court.

“I am very pleased to report that the healthcare bill is clear of any provisions that would limit an injured patient’s rights concerning medical negligence claims,” crowed Anthony Tarricone, president of the American Association for Justice, the United States’ largest plaintiffs bar, in a letter to his membership. “While some states may embark on demonstration programs we find objectionable, the opt-out provision for plaintiffs minimizes this concern.”