Dems propose limited tort reforms following Obama overture

A few Democrats are floating limited medical malpractice reforms after President Obama extended an olive branch to the GOP in his State of the Union address. Their ideas however fall short of Republicans' preferred solution, a $250,000 cap on non-economic damages along with other limitations on lawsuits.

"I'm willing to look at other ideas to bring down costs, including one that Republicans suggested last year: medical malpractice reform to rein in frivolous lawsuits," Obama said Tuesday.

Rep. Peter DeFazio (D-Ore.) told The Hill that one solution could be "soft caps," which protect medical professionals if they make an error within the usual scope of practice.

"I get in trouble because I say I think that there's a compromise where you have a higher standard for malpractice," DeFazio said. "Something like [soft caps] might be a potential compromise, but it would have to be higher than $250,000 [for the cap on non-economic damages]."

Rep. Robert Andrews (D-N.J.), the top Democrat on the Health, Employment, Labor, and Pensions Subcommittee, also offered up ideas. 

"If medical malpractice reform means special courts that fast-track medical cases or strong incentives to settle cases early or requirements that there be an expert affidavit that backs up the allegation of medical malpractice, I'm for those things and I think they'll work," Andrews said. "I think that's an area the president has put forward in good faith and we should work with him on it."

Andrews also said tort-reform grants in the healthcare reform law should also be given a chance to work. The law authorized $50 million for five-year demonstration grants for states to experiment with tort litigation alternatives starting this fiscal year, but the money was not appropriated because the law was enacted after the president's FY11 budget request reached Congress.

The administration did announce $25 million in medical liability grants in June 2010 after the president called for such an investment in his September 2009 healthcare address to a joint session of Congress. 

The president's suggestion was immediately blasted by trial lawyers' groups, including the American Association for Justice, while the American Medical Association cheered on. Even limited malpractice reforms will have a hard time getting through the Democrat-controlled Senate.

"I think developing the state program is a start that's worth exploring further before we get too far down the road," said Sen. Sheldon Whitehouse (D-R.I.), one of trial lawyers' staunchest allies on Capitol Hill. "The Constitution is pretty serious about people's right to a jury, and as we have so many people in the [Capitol] building now who are seeking to anchor themselves to the Constitution, they'd do well to reflect [on] that."