The United States House of Representatives introduced a bill on June 16, 2011 aimed at tort reform. The stated intent of the bill is to improve the medical justice system and the short title is “Ending Defensive Medicine and Encouraging Innovative Reforms Act of 2011.” This bill has the potential to bar subrogation rights for workers compensation, health and casualty carriers.
House of Representative Bill 2205 (H.R. 2205) attempts to encourage states to create alternative medical liability laws and mandates specifics to be included in any such law enacted by a state. Incentive payments would be available to states that had successfully enacted and implemented such an alternative medical liability law. To ensure the incentive payments produce the desired results, the Secretary of Health and Human Services would require states to submit reports. The Secretary would then compile the data and annually measure whether there was (1) a reduction in the number of health care lawsuits initiated in a state; (2) a reduction in the amount of time required to resolve lawsuits in the state; and (3) a reduction in the cost of malpractice insurance in the state. If the alternative medical liability law produced the intended results, then the state would be eligible for an incentive payment. However, if the secretary determined that the state law had not produced the intended results, any subsequent health care lawsuits would be subject to further scrutiny and the bill lists a number of provisions for which a state must comply. For example, one such provision is a cap of $250,000 for noneconomic damages. A further provision provides a complete bar to pursue any subrogation rights or enforce any lien or credit against a claimant’s recovery. Although, Medicare is excepted from this bar to pursue subrogation rights or a lien, it would apply to any case that is settled or decided by a trier of fact.
This federal bill takes a unique approach to addressing medical malpractice reform. Although, the importance of subrogation recoveries is recognized as to the federal government and specifically preserved in the bill, the same consideration is not provided for other entities or businesses. If the bill is passed, only those states that struggle to produce the intended results would trigger the bar to subrogation.
Pennsylvania Senate Bill 1131
On June 28, 2011 Governor Tom Corbett signed into law the Fair Share Act, allowing for a change generally to “several” liability in comparative negligence actions. The new law applies to causes of action that accrue on or after its enactment. Pennsylvania joins a growing number of states that have sought and passed reforms to their joint and several liability laws. Now, when a Pennsylvania defendant’s negligence is determined to be less than 60% responsible, they will pay damages in accordance with the degree of fault assessed against them. However, there are a few exceptions, where a defendant’s liability remains joint and several, which are:
(i) intentional misrepresentation;
(ii) intentional tort;
(iii) a release or threatened release of a hazardous substance under the Hazardous Sites Cleanup Act; and
(iv) a civil action in which a defendant has violated section 497 of the Liquor Code.
Alabama Senate Bill 269
The Governor of Alabama recently signed Senate Bill 269, which excludes someone who handles only subrogation claims from the licensing and regulation requirements of an independent adjuster.
AS REPORTED BY THE NATIONAL ASSOCIATION OF SUBROGATION PROFESSIONALS