Tort Reform Democrat Style

With Obamacare the law of the land we are just beginning to find out what is in it. Contrary to what President Obama said about taking the best ideas even from the Republicans, we now find that there is tort reform in the bill. The problem is that it is the wrong kind of reform.

The Republicans wanted limits on the awards available for errors made by doctors. Right now many doctors pay over $100,000 per year for insurance and practice defensive medicine where they will order tests that really aren't called for in order to avoid a possible lawsuit in the future or at least have a good defense.

So what does Obamacare do? Section 2304 of the inappropriately named "Patient Protection Affordable Care Act" is entitled "Clarification of Definition of Medical Assistance." The section amends the Social Security Act and, by all appearances, fundamentally redefines Medicaid.

The requirement of what the states provide for Medicaid recipients apparently shifts from making payments to their doctors-- to ensuring the medical "care and services themselves." What this means is that if there is a shortage of doctors, or a shortage of doctors who will take Medicaid patients, the states could be legally judged to have failed in their obligations if a Medicaid patient had been unable to get a doctor's visit in timely fashion.


Louisiana health secretary Alan Levine in a memo to fellow state officials, "With the expanded definition, it leaves every state vulnerable to a new wave of lawsuits any time someone cannot access a service, even if that service is limited by virtue of the rates we pay."

It is no wonder that 14 State Attorney Generals have sued the federal government over the healthcare plan. Right now they are suing just because of the individual mandate part of the bill, but this new exposure to lawsuits of individual states may drive more to be part of the suits.