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Smarr: Senate Should Fix Self-Gutting Malpractice Provision

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WASHINGTON BUREAU — A proposed addition to H.R. 3590, the Senate health bill, would encourage states to set up new systems for handling medical malpractice claims – but it also would let claimants opt out of using the new systems.

Lawrence Smarr, president of the Physician Insurers Association of America, Rockville, Md., says his group believes the provision would let claimants opt out at any time.

“Allowing claimants to opt-out of the new processes at any time is a serious concern,” Smarr says. “We are okay with an op-out provision as long as there is a point where both parties commit to the process… As currently worded, the provision would gut any tort reform the bill encourages states to implement. We are hopeful that it can be reworded during the conference process.”

The provision, contained in Section 10607 of the proposed H.R. 3590 manager’s amendment that was unveiled Saturday by Senate Majority Leader Harry Reid, D-Nev., would encourage states to develop, implement, and evaluate “alternatives to current tort litigation for resolving disputes over injuries allegedly caused by health care providers or health care organizations.”

The provision would provide $50 million in state health injury dispute resolution alternative grants per year for 5 years.

States would apply to the U.S. Department of Health and Human Services for the grants.

Most of the provision is similar to a provision already in the House health bill, but the opt-out provision is a major concern, Smarr says.

In related news, Smarr says he is pleased that the Senate bill does not contain a provision that would repeal the antitrust exemption currently accorded health and medical malpractice insurers under the McCarran-Ferguson Act.

But, he cautioned, the provision remains in the House bill, and it will be subject to negotiations when lawmakers hammer out the final version of the bill in a House-Senate conference committee.


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