Medical Malpractice

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Issue: Medical Malpractice


For example, in an effort to establish national policies on health care access and medical cost containment, members of Congress have introduced bills repeatedly in successive Congressional sessions to federalize and alter litigation procedures in health care lawsuits.  In addition, bills have been introduced to federalize certain aspects of trade secret enforcement. Despite the tradition of state law primacy, a number of legislators have begun to call for the recognition of a private federal right to sue those who acquire trade secrets by improper means.  Some proposals would preempt state laws.


State court leaders have repeatedly urged Congress to be mindful of federalism principles when considering any legislation seeking to make uniform practices and procedures. 


Following patterns in previous Congresses, the House in the 114th Congress is considering legislation to create uniform national mandates with respect to “health care lawsuits”.  Such proposals would federalize in significant ways many state policies and practices, as provided in statutory and common law, including provisions to: (1) establish a nationwide limit and calculation formula for non-compensatory and punitive damages, (2) repeal the collateral source rule, (3) limit contingency fees for claimant attorneys,  (4) institute a uniform 3-year statute of limitations for health care lawsuits, and (5) require periodic payment of damages in any case where future damages are awarded.   


In June 2015, “The Saving Lives, Saving Costs Act” was re-introduced in both Houses (H.R. 2603 and S. 1475).  It provides for the development of national clinical practice guidelines for healthcare professionals.  The bills provide that a healthcare professional sued for malpractice in state court who followed the guidelines can seek removal of the claims to a federal court.  The legislation would set uniform criteria for trial court summary judgment rulings.

The ULC State & Federal Relations Committee continues to meet two times per year to plan outreach to the federal government and organizations concerning federalism issues. NCSC staff participates in the meetings.  The ULC State & Federal Relations Committee met again in Washington, DC in November.