President Obama continues to put out feelers that he might consider making real concessions to Republicans on medical malpractice reform/caps in exchange for a health care bill.
What does this all mean in general and to Maryland malpractice lawyers and their clients? First, I think President Obama is trying to offer Republicans just enough to flip one or two GOP senators which means, if anything, he will propose a bill that he thinks will be opposed by medical malpractice lawyers but not enough to set them off into the stratosphere. In Maryland, we already have a significant cap on noneconomic damages in malpractice cases. So I suspect this thinking is he will support either reform measures that fall short of caps, perhaps requiring certificate of merits in every state before the filing of a lawsuit, or a national malpractice cap that is higher than many states, including Maryland, already have on noneconomic damages. My guess is if he agrees to a cap: $950,000 on noneconomic damages.
If this turns out to be the case, and this is what comes out of a health care reform bill, there will be no immediate practical effect on Maryland medical malpractice cases because we already have a cap and we already require a certificate of merit. But it would still be an awful blow for victims everywhere, including Maryland, because once you open the floodgates and allow the federal government to enter into what is clearly an issue that historically has been reserved to the states (and the judiciary for that matter), it is going to be open season on civil lawsuits. This is why Republicans will accept a relatively weak malpractice reform bill – to get their foot in the door. So in Maryland, malpractice reform might simultaneously have no immediate impact and still be a disaster for malpractice victims all at the same time.
- More thoughts with a 2013 update (the President appears to have gotten off this issue)