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Senators Continue Malpractice Fight

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NU Online News Service, July 9, 2003, 5:33 p.m. EDT — Washington

Two senators have introduced a medical malpractice reform bill that would repeal the McCarran-Ferguson antitrust immunity for medical malpractice policies.

Sens. Richard Durbin, D-Ill., and Lindsey Graham, R-S.C., introduced the bill, the Better Health Act of 2003, shortly before the Senate killed S. 11, a bill backed by the Bush administration that would have placed a $250,000 cap on non-economic damages in medical malpractice cases.

The Durbin-Graham bill, S. 1374, is being offered as an alternative to S. 11, but many doubt S. 1374 will do any better than S. 11.

The Durbin-Graham bill would eliminate the insurance industry’s antitrust immunity in connection with allegations of price-fixing, bid-rigging and market allocations in the medical malpractice insurance market.

In addition, the bill would have the Treasury Department study the feasibility of creating a Federal Reinsurance Fund to pay for non-economic damages. This fund would help malpractice insurers price their products better and protect malpractice insurers from rising reinsurance costs, according to a summary of the bill.

The fund would be financed through insurance user fees.

The legislation would also establish an independent advisory commission to study medical malpractice insurance and determine the causes and scope of recent price increases.

On the tort reform front, the Durbin-Graham bill would require attorneys filing a medical malpractice action to include an affidavit by a qualified health care specialist. In addition, the attorney would have to certify that the case was meritorious.

Attorneys who filed false certificates would have to pay court costs and reimburse defendants for their attorney’s fees. Repeated offenders would face additional penalties, possibly including state bar association disciplinary action.

Links to the text of the bill and information about the bill are available at