Last updated on: 7/26/2010 | Author:

Will the new laws reduce medical malpractice liability?

PRO (yes)


The Patient Protection and Affordable Care Act, signed into law on Mar. 23, 2010, available at, states:

“Sec. 10607.  State demonstration programs to evaluate alternatives to current medical tort litigation.

IN GENERAL.—The Secretary is authorized to award demonstration grants to States for the development, implementation, and evaluation of alternatives to current tort litigation for resolving disputes over injuries allegedly caused by health care providers or health care organizations. In awarding such grants, the Secretary shall ensure the diversity of the alternatives so funded.

Conditions for demonstration grants.—
‘‘(1) REQUIREMENTS.—Each State desiring a grant under subsection (a) shall develop an alternative to current tort litigation that—
‘‘(A) allows for the resolution of disputes over injuries allegedly caused by health care providers or health care organizations; and
‘‘(B) promotes a reduction of health care errors by encouraging the collection and analysis of patient safety data related to disputes resolved under subparagraph (A) by organizations that engage in efforts to improve patient safety and the quality of health care.”


David Cutler, PhD, Professor of Economics at Harvard University, wrote in his Mar. 9, 2010 Wall Street Journal article “Health Reform Passes the Cost Test”:

“Defensive medicine is a small but important driver of medical spending. The reform proposal makes some headway, encouraging states to experiment with alternative mechanisms to reduce malpractice burdens. More could be done—for example, specialized malpractice courts and a safe harbor for physicians practicing evidence-based medicine—but the president’s proposal makes a start.”

Mar. 9, 2010


The American Medical Association wrote in its May 6, 2010 fact sheet titled “Frequently Asked Questions About the Patient Protection and Affordable Care Act,” available on the American Medical Association’s website:

“The legislation establishes a competitive grant program for states to develop, implement and evaluate innovative medical malpractice reforms. This is in addition to the $25 million medical liability reform alternative grant program that the Administration initiated in September 2009, which is being implemented by the Agency for Healthcare Research and Quality (AHRQ). The AMA will continue to advocate for proven liability reforms at the federal level, such as a cap on non-economic damages. The AMA worked aggressively to ensure that liability reform provisions were included in health system reform legislation, and the Administration’s effort to stimulate innovation at the state level represents tremendous progress in an area where previous administrations have failed to propose even incremental changes.”

May 6, 2010


The Senate Democratic Policy Committee wrote in its Feb. 11, 2010 fact sheet titled “On Health Insurance Reform, GOP Won’t Take ‘Yes’ for an Answer,” available on the Senate Democratic Policy Committee’s website:

“It’s no secret that Democrats and Republicans have different views on medical liability reform… However, recognizing the need to address this issue, the Patient Protection and Affordable Care Act includes provisions to assist states in testing alternatives to civil tort litigation.”

Feb. 11, 2010

CON (no)


Charles Krauthammer, MD, Pulitzer Prize-winning Washington Post columnist, wrote in his Nov. 27, 2009 Washington Post article “Kill the Bills. Do Health Reform Right”:

“The bill is irredeemable. It should not only be defeated. It should be immolated, its ashes scattered over the Senate swimming pool.

Then do health care the right way — one reform at a time, each simple and simplifying, aimed at reducing complexity, arbitrariness and inefficiency.

First, tort reform. This is money… wasted in two ways. Part is simply hemorrhaged into the legal system to benefit a few jackpot lawsuit winners and an army of extravagantly rich malpractice lawyers such as John Edwards.

The rest is wasted within the medical system in the millions of unnecessary tests, procedures and referrals undertaken solely to fend off lawsuits — resources wasted on patients who don’t need them and that could be redirected to the uninsured who really do.

In the 4,000-plus pages of the two bills, there is no tort reform.”

Nov. 27, 2009


Robert J. Blendon, ScD, Senior Associate Dean for Policy Translation and Leadership Development at the Harvard School of Public Health, and John M. Benson, MA, Managing Director of the Harvard Opinion Research Program, wrote in their Nov. 19, 2009 article “The American Public and the Next Phase of the Health Care Reform Debate,” published by the New England Journal of Medicine:

“…[T]he proposals do not include at least one element that is popular with the public: limits on the amount of money patients can collect in medical malpractice lawsuits.”

Nov. 19, 2009


John Cornyn, LLM, US Senator (R-TX), stated in his Jan. 28, 2010 lecture titled “Health Care and Medical Malpractice Reform: The Necessity of Reform in the Current Debate,” available on the Heritage Foundation’s website:

“…[W]hy is medical liability reform not a major part of the health care bills running through Congress?… Because the people who wrote it did not want to take on the trial lawyers in addition to everybody else they were taking on, and that is the plain and simple truth…

At the least, the Baucus bill in the Senate Finance Committee, the committee on which I serve, was a little more neutral about it, but, amazingly, it offered nothing more than a sense-of-the-Senate resolution. That resolution states that states should explore liability reform, and, of course, they do not need to wait for the Senate to tell them to do so. A number of them have already.

So the Finance Committee bill took absolutely no concrete action at all on medical liability reform while providing perhaps the fig leaf that many were looking for, consistent with the President’s comments to the AMA [American Medical Association] and elsewhere, that this is something we ought to look at. We need to do more than look. We need to actually act…”

Jan. 28, 2010


Michael Burgess, MD, United States Representative (R-TX), wrote in his Mar. 30, 2010 blog post “Obamacare’s Impact on Doctors,” available on the Heritage Foundation’s website:

“The final legislation signed into law by President Obama last week had no doc fix and the lamest excuse for medical liability reform I have ever seen – a few million dollars for states to conduct pilot programs…

[O]bamaCare included neither Medicare physician payment reform or liability reform.”

Mar. 30, 2010