Reconciliation Act Of 2010

Floor Speech

* Mr. Speaker, I would like to submit for the record a letter sent to me by the Physician Insurers Association (PIAA) expressing their concerns that multiple provisions of H.R. 3590 could potentially create new causes of action for medical liability claims despite the assurances I received from the committees and others that there would be no impact.

* Mr. Speaker, the House-passed H.R. 3962 prevented these causes of action from being created by adding Section 261. Section 261 stated that the development, recognition, or implementation of any guideline or other standard shall not be construed to establish the standard of care or the duty of care owed by healthcare providers to their patients in any malpractice action or claim.

* Mr. Speaker, for the record, it was the legislative intent of Congress to insert Section 261 or similar language in any Conference Committee bill to prevent new causes of action. It was not and never has been the intent of this legislation to create any new causes of action or claims premised on the development of guidelines or other standards.

Physician Insurers
Association of America,

Rockville, MD, March 9, 2010.

Hon. Dennis Cardoza,

Longworth Building,

Washington, DC.

Dear Congressman Cardoza: On behalf of the 60 domestic primary medical professional liability insurance company members of the Physician Insurers Association of America (PIAA), I am writing regarding the healthcare reform legislation passed by the Senate. Specifically, I would like to share our concerns about the legislation creating new causes of action for medical liability claims.

The PIAA is the only trade association in the nation dedicated solely to the medical professional liability insurance industry. Our members are physician and other healthcare provider owned or operated professional liability insurers which provide indemnification for over 60% of America's doctors, as well as dentists, hospitals and other healthcare providers. Our member insurance companies were formed by state medical, dental and hospital associations over the past 30 years, to include 4 which are domiciled in California. They were formed with the specific goals of lowering insurance costs for providers and helping patients through sound underwriting and patient safety practices. In this regard, we are uniquely qualified to offer our perspective on medical liability issues.

As approved by the Senate, H.R. 3590 contains at least 14 provisions which could create new causes of action for medical liability claims. These include:

Section 2701 (adult health quality measures).

Section 2702 (payment adjustments for health care acquired conditions).

Section 3001 (Hospital Value-Based Purchase Program).

Section 3002 (improvements to the Physician Quality Reporting Initiative).

Section 3003 (improvements to the Physician Feedback Program).

Section 3007 (value based payment modifier under physician fee schedule).

Section 3008 (payment adjustment for conditions acquired in hospitals).

Section 3013 (quality measure development).

Section 3014 (quality measurement).

Section 3021 (Establishment of Center for Medicare and Medicaid Innovation).

Section 3025 (hospital readmission reduction program).

Section 3501 (health care delivery system research, quality improvement).

Section 4003 (Task Force on Clinical and Preventive Services).

Section 4301 (research to optimize deliver of public health services).

Sufficient questions were raised about these sections of H.R. 3590 that a provision was added to the bill commissioning a Government Accountability Office (GAO) study to see if these sections did indeed result in new avenues for medical liability claims to be filed. Quite simply, such a study is unnecessary and possibly harmful. If Congress intends to create multiple new avenues for the filing of medical liability claims, it does not need to commission the study. If, as we have been told, it does not intend to substantially increase medical liability litigation, a study will only needlessly create an opening for such cases to be filed until Congress finds the opportunity to correct the issue.

Congress should not wait for a study to be conducted--it should clearly state its intent in the legislation to not create new medical liability causes of action which could dramatically increase medical liability insurance premiums and potentially decrease access to healthcare providers in the process. The PIAA recommends the following legislation language to address this issue:

--Construction Regarding Standard of Care

The development, recognition, or implementation of any guideline or other standard under any provision of this Act shall not be construed to establish the standard of care or duty of care owed by healthcare providers to their patients in any medical malpractice action or claim (as defined in section 431(7) of the Health Care Quality Improvement Act of 1986 (42 U.S.C.10 11151(7)).

From the very beginning of the healthcare reform debate, there has been broad consensus that medical liability reform was a necessary component in making our healthcare system more efficient and effective. While the exact nature of that reform has been the source of some disagreement, no one has been suggesting that our medical system will be improved by having new opportunities for even more medical liability claims to be filed. Congress should ensure such opportunities are not created by healthcare reform legislation.

Thank you for your time and consideration of this critically important issue. Should you have any questions about these proposals, or need additional information, please do not hesitate to contact me. We look forward to working with you on this most important issue.

Sincerely,

Lawrence E. Smarr,

President.

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