With the absence of a supermajority in the Senate, President Obama is faced with the prospect of reconciliation or compromise in order to get a healthcare bill on his desk. Trial lawyers and other interest groups, however, are urging the President not to compromise on his prior position that tort reform would not be part of any negotiations to get a healthcare bill passed. Some believe, however, the President is wavering and is heading in the direction of giving in to the Republican's top priority of getting significant tort reform measures added as part of a "bipartisan" healthcare bill.
The White House plans on posting a revised healthcare reform proposal on February 25th, before a scheduled bipartisan healthcare summit. Many are curious as to whether this revised proposal will contain tort reform measures such as absolute caps on noneconomic damages. Many strategists believe that tort reform is the only "olive branch" that will generate significant Republican support for a healthcare bill.
According to a February 14th article in the TheHill.com, many strategists are evaluating recent remarks by the President suggesting that tort reform could be an area of compromise in a bipartisan healthcare bill, but suggest they are uncertain exactly what the President means by a "middle ground" on such a compromise, which he has mentioned several times. Some believe he will not drastically change his position against absolute damages caps, although the President did suggest he could embrace a proposal that might "make my party a little bit uncomfortable." This would not be the first time he has gone against the will of his own party in making deals unpopular with the Democratic party.
Tort reform at the federal level is bad public policy. Many states already have in place significant reforms in the form of caps on noneconomic damages, immunity provided to certain emergency medical providers and first responders, and expert certification requirements before a plaintiff may file a medical malpractice case in a state court. Those reforms arguably place an unfair burden on the injured victim to the benefit of the tortfeasor. Many state caps are being challenged on constitiutional "separation of powers" grounds. Two weeks ago, Illinois declared its legislatively created cap on noneconomic damages unconstitutional and other states, including Maryland, have cases before their state supreme courts, which make similar challenges.
Federally instituted tort reforms will generate more challenges and litigation and will be of limited significance in the state court systems in this County. The time for wheeling and dealing healthcare reform must come to an end. It's time for Congress to get its act together and pass comprehensive healthcare reform without all the pork and add-ons being proposed.