Tuesday, September 15, 2009


Call this a speculation. That's what it is.

As we have heard, "tort reform" has now been included in the Obama administration's package of initiatives. As the Prez indicated in his speech last week, he is in favor of restricting medical malpractice suits in certain locales--yet unspecified--to assess the impact of those limitations. This, of course, was to win a few Republicans. So far, he has won curses, crazies, and a few claps for this particular concept. Claps aren't votes.

Med mal is not device preemption. But the "tort reform" agenda as pushed by Bush/Rove kept that distinction as fuzzy as possible. While the fight was for the industry's agenda spearheaded by Dan Troy, the "face" of tort reform was always doctors and nurses. They look a lot better in newspapers.

Undoubtedly, Congressional Republicans will also mush med mal issues with FDA preemption, which still fully stands in the device arena. And how much stomach will Congress have for amending the Medical Device Act in a way that could reverse Riegel, with or without the O administration's early statements on agency preemption?

I'd say....very, very little.


    Current Law
    No provision.
    Chairman’s Mark
    The Chairman‘s Mark would express the Sense of the Senate that health care reform presents an opportunity to address issues related to medical malpractice and medical liability insurance. The Mark would further express the Sense of the Senate that states should be encouraged to develop and test alternatives to the current civil litigation system as a way of improving patient safety, reducing medical errors, encouraging the efficient resolution of disputes, increasing the availability of prompt and fair resolution of disputes, and improving access to liability insurance, while preserving an individual‘s right to seek redress in court. The Mark would express the Sense of the Senate that Congress should consider establishing a state demonstration program to evaluate alternatives to the current civil litigation system."


    Re: Medical Malpractice

    The above is the language from the Baucus Proposal, any thoughts?

  2. The truth about tort reform has not been told and it won’t be told until someone in the media has the nads to explain this travesty to the American public.

  3. Hi James,

    My thoughts are that Baucus has put together another string of sentences that say everything and nothing.

    Will Michigan be the "demonstration program"? Perhaps we should volunteer, since we have been a kind of "in vivo" experiment already for several years. (Yes, there's med mal, but limits there as well, if not complete shield.)

    What I really think is that Obama (and many of us) seriously underestimated how much this country has become, in essence, an oligarchy. And the oligarchs clearly "run the table" as far as what goes down.

    At this point, I think we need Teddy more than Franklin Roosevelt--in his Bull Moose guise.

  4. “Tort reform” is the phrase used by its advocates who claim it is a change in the legal system to reduce litigation's adverse effects on the economy. What its advocates don’t want anyone to know is that preemption increases, rather than decreases, litigation’s adverse effects on the economy. Injuries and deaths caused by faulty medical devices can cost hundreds of thousands of dollars in medical bills. Those costs are paid for, not by the medical device companies, but by Medicare, Medicaid, and private insurance companies. American citizens, in turn, pay for those costs through either increased taxes or increased insurance premiums. In most situations, outside the medical device realm, when a recovery is made through litigation, full or partial medical reimbursement is made to the paying party. Preemption places the entire burden upon the American citizens. So, although “tort reform” might be a noble goal in health reform, it won’t be found in medical device preemption.

  5. Absolutely right, Anon. Michigan is, indeed, the petri dish for your claims. The state has paid out millions in care for those killed/injured by rx drugs during the past 14 years of our absolute shield law.

    Meanwhile, in order to be "consistent," Michigan attorney generals have not participated in FCA claims, and so have not recouped money fraudulently charged Michigan's Medicaid.

    Interesting to me that this was not true re: the current Pfizer case. I'm assuming that may relate to the following:

    --The AG is the most likely Republican candidate for governor.

    --Pfizer said bye-bye to Michigan despite our law being "a favor to the Upjohn company" in the words of an associate of former Governor Engler (speaking of up John) who initiated our statute.

    --Enough is friggin enough.

    For reasons I don't know, only South Carolina did not join the Pfizer false claims settlement. I could speculate why, but some dude would probably shoot out of the trees, shouting, "YOU LIE!"


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