Liability and the Health Care Bill: An 'Alternative' Perspective

Abstract

The recently passed health care bill contains many provisions that deserve celebration. Improving access to care is an important first step. Enhancing patient safety and accountability is an important second step, one that proponents of medical malpractice reform often undermine with attempts to restrict the liability of health care providers through “litigation alternatives.” During the health care debate, these advocates frequently raised liability issues (couched in politicized rhetoric), despite studies that show civil litigation is protecting patient safety in the health care system now and will continue to play a significant role in the future.

Congress ultimately rejected proposals to create new federal tort law for medical malpractice cases as part of health care reform. Many of these proposals suffered from severe legal, efficiency, and fairness concerns. They also would have amounted to serious intrusions into state power, thus raising constitutional concerns.