Just before the House leadership’s 794-page health care reform bill went to a Ways & Means markup last Thursday, a remarkable provision was slipped in that amounts to one of the more audacious and far-reaching trial lawyer power grabs seen on Capitol Hill in a while. Republicans managed to fend it off for the moment–but don’t be surprised if it shows up again down the road in some form.
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A few other highlights of the provision:
–It would knock out a significant current barrier to litigation by doing away with a rule that restricts the filing of a Medicare suit until after a previous “judgment,” that is to say, after the success of an earlier lawsuit establishing responsibility for the injury.
–Damages would double in cases of “intentional tort or other intentional wrongdoing.”
–“Any person” could bring the action, that is, not just a lawyer representing the Medicare recipient, and the bounty would be a rich one, 30% plus expenses. Even if the federal government itself intervened and insisted on taking over the lawsuit, the bounty hunter would still get a minimum of 20%, perhaps as reward for winning the race to the courthouse. No one other than the federal government could oust the first-to-file lawyer from control of the action, so other private lawyers who lost the race to the courthouse would be out of luck. And the lawyer could settle the suit with the designated defendants “notwithstanding the objections of the United States”–that is, the objections of the entity on whose behalf it was supposedly filed–if a court so agreed.
–Medicare would have to cooperate with the private lawyers, whether or not the government joined or approved of the action, by handing over various documents useful to them.
For the moment, at least, we’ve dodged the bullet. Some Republicans on the committee spotted the issue and raised strong protests, and by the end of Thursday, Democratic managers had agreed to withdraw the provision. That still provides no guarantee that it will not rear its head at some later stage in the process that proponents judge more favorable to their designs.
Walter Olson
Forbes
7/23/9
hattip Michelle Malkin
Magnolia Tribune
