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Friday, March 4, 2011

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys of Caps on Noneconomic and Punitive Damages and of Punitive Damages Burden of Proof Standards

Vivian S. Chu
Legislative Attorney

Medical malpractice liability is governed by state law, but Congress has the power, under the Commerce Clause of the U.S. Constitution (Art. I, § 8, cl. 3), to enact tort reform laws that would affect actions for medical malpractice liability brought under state law. In the 112th Congress, H.R. 5, the Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act was introduced by Representative Phil Gingrey on January 24, 2011, and was marked up on February 9 and 16, 2011, by the House Committee on the Judiciary. This bill would preempt state law with respect to certain aspects of medical malpractice lawsuits. Past Congresses have considered similar measures.

This report does not examine the effects of medical malpractice litigation or medical malpractice liability reform on the health care system or on the cost of liability insurance premiums; rather, it explains specific tort reform proposals that are commonly included in medical malpractice liability reform bills, and discusses the individual arguments in favor of and against such proposals from a legal perspective. These proposals include imposing caps on noneconomic damages and punitive damages; permitting defendants to be held liable for no more than their share of responsibility for a plaintiff’s injuries; requiring that damage awards be reduced by amounts plaintiffs receive from collateral sources such as health insurance; limiting lawyers’ contingent fees; creating a federal statute of limitations; and requiring that awards of future damages in some cases be paid periodically rather than in a lump sum. It also includes, where appropriate, a description of H.R. 5’s provisions with respect to these categories.

An Appendix to this report includes two tables. The first table (Table A-1) is a 50-state survey of caps on noneconomic and punitive damages. The second table (Table A-2) is a 50-state survey of the burden of proof standards for punitive damages and whether a state requires a separate proceeding to determine such damages.

Date of Report: March 1, 2011
Number of Pages: 36
Order Number: R41661
Price: $29.95

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