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“Obamacare” and Medical Malpractice

The passage of the Patient Protection and Affordable Care Act (PPACA) — also known as “Obamacare” — in 2010 did not put an end to the debate about healthcare in general and medical malpractice in particular.

The costs of medical malpractice go beyond the costs of the lawsuits and the costs of malpractice insurance. It is claimed that many unnecessary tests are ordered by doctors simply so that they can’t be charged with not ordering a particular test if they are ever sued. Politicians, doctors, and lawyers can’t agree on the best ways to reform the system.

Democrats and Republicans agree that medical malpractice lawsuits raise the cost of healthcare, but they disagree about what to do about the situation.

Medical malpractice laws in the United States are a real “hodge podge.” What the victim of medical malpractice is able to collect varies tremendously depending on what state he or she lives in. Most states do not have a cap or limit on damage awards; 14 do.

Joint and several liability is an issue that sounds “technical,” but it’s very important to victims of medical malpractice.

Joint and several liability means if several entities are held responsible for an episode of malpractice – a hospital and a doctor for example – if one can’t pay a share of the settlement award, the other party has to pay the full difference.

For example, if the doctor was 80% responsible for a case of malpractice and a hospital only 20%, if the doctor had no insurance and went bankrupt and couldn’t pay anything, under joint and several liability the hospital would have to pay the full award.

Under several liability, the hospital would not have to pay more than the 20% that it was held responsible for.

Laws vary tremendously from state to state; roughly half the states have some form of joint and several liability, the other half have several liability, sometimes with variations as well.

Twenty eight states have limits on attorney fees and 27 have some form of alternative dispute resolution built into law.

New Jersey is among the states that have some of these restrictions. A few provisions of New Jersey medical malpractice law are:

  • Punitive damages are capped at the greater of five times the actual damage or $350,000.
  • There is “modified” joint and several liability. Unless one defendant is held responsible for more 60% of the damage, each defendant is only liable for their proportional share of the damages.
  • There are limits on attorney fees: 1/3 of the first $500,000 recovered, and lower percentages of higher amounts.
  • There is a provision for voluntary arbitration of claims.

Republicans have been pushing for a nationwide cap of $250,000 on “non-economic damages” in medical malpractice. President Obama has said he prefers granting immunity to doctors who consistently follow the “best practices” in their specialty, but having no immunity and no cap on damages for doctors who don’t follow the accepted guidelines.

If you have any questions about medical malpractice law in New Jersey, contact an experienced medical malpractice attorney at the law offices of James C. DeZao, P.A.

New Jersey Personal Injury Attorney